956 F.2d 436 (3rd Cir. 1992), 91-1648, Rotondo v. Keene Corp.

Docket Nº:91-1648.
Citation:956 F.2d 436
Party Name:Rose C. ROTONDO, Executrix of the Estate of Louis J. Rotondo, Deceased, and Rose C. Rotondo, in Her Own Right v. KEENE CORPORATION.
Case Date:February 11, 1992
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 436

956 F.2d 436 (3rd Cir. 1992)

Rose C. ROTONDO, Executrix of the Estate of Louis J. Rotondo, Deceased, and Rose C. Rotondo, in Her Own Right



No. 91-1648.

United States Court of Appeals, Third Circuit

February 11, 1992

Submitted Under Third Circuit Rule 12(6) January 30, 1992.

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Ronald E. Hurst, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellant.

Michael B. Leh, Martin Greitzer, Greitzer & Locks, Philadelphia, Pa., for appellee.

Before SLOVITER, Chief Judge, MANSMANN and HUTCHINSON, Circuit Judges.


SLOVITER, Chief Judge.

On this appeal defendant Keene Corporation argues that the plaintiff, Rose Rotondo (in her own right and as executrix of the estate of her husband, Louis Rotondo), produced insufficient evidence to support the jury's verdict that Louis Rotondo's death was caused by his inhalation of asbestos fibers shed from a product manufactured by Keene's predecessor, Ehret Magnesia Company.


Procedural History

In 1987 Louis Rotondo (Rotondo) and his wife filed this action against Keene and several manufacturers of asbestos-containing products. On August 23, 1988, Rotondo died of mesothelioma, a cancer caused exclusively by inhalation of asbestos fibers. It is undisputed that Rotondo contracted mesothelioma as a result his exposure to asbestos fibers. It is also undisputed that Ehret manufactured pipecovering containing 15% asbestos. Prior to trial, all of the other defendants either filed for reorganization under the bankruptcy laws (Celotex Corporation, Raymark Industries, Inc., Eagle-Picher Industries, Inc.) or settled with the plaintiff (Garlock Corporation).

Page 438

At the close of plaintiff's case, Keene moved for a directed verdict arguing that plaintiff failed to prove that Rotondo was exposed to Ehret pipecovering and that this exposure was a substantial contributing factor in causing his death, a motion Keene renewed at the close of its case. The district court denied both motions. The jury found for the plaintiff, awarding Rose Rotondo $275,000 as executrix of her husband's estate and $125,000 for loss of consortium. The jury also found in favor of Keene against the settling co-defendant Garlock on Keene's cross-claim for contribution, reducing the verdict by 50%. Upon plaintiff's motion, the court awarded Rose Rotondo $81,039.77 in delay damages pursuant to Pa.R.Civ.P. 238.

Keene filed a post-trial motion seeking j.n.o.v. or a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59 respectively. The district court denied the motion, and Keene appeals.


Standard of Review

Without question the substantive products liability law of Pennsylvania applies in this diversity action. This court applies the federal standard for judging the sufficiency of the evidence in diversity actions. See, e.g., Woods v. National Life & Acc. Ins. Co., 347 F.2d 760, 768 (3d Cir.1965) (noting, in case applying state contract law, that "[t]he federal courts have their own standard for ascertaining when a verdict should be directed"); Kinnel v. Mid-Atlantic Mausoleums, Inc, 850 F.2d 958, 961 (3d Cir.1988) (applying, without discussion, federal sufficiency of evidence test in state law contract dispute); see also 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.06 (2d Ed. 1991) (noting that most circuits apply federal standard). We note, in any event that under both federal and Pennsylvania law, a court considering a motion for j.n.o.v. must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (in banc); Atkins v. Urban Redevelopment Auth., 489 Pa. 344, 414 A.2d 100, 103 (1980).

This court has stated that "[i]n reviewing the district court's ruling on the parties' motions for judgment n.o.v., [the appeals court] appl[ies] the same standard as the trial court." Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1034 (3d Cir.1988). Under federal law, this court should affirm the denial of a motion j.n.o.v. "unless the record 'is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.' " Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981) (quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969)). In addition, this court reviews a district court's ruling on a motion for a new trial for abuse of discretion unless the court's denial of the motion is based on the application of a legal precept, in which case the standard of review is plenary. Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 (3d Cir.1986).


Relevant Facts

The evidence viewed in the light most favorable to the plaintiff showed that over an 18-month period during 1942-43 Rotondo worked for 6 months as a tacker and for the remainder as a welder at the Philadelphia Naval Ship Yard. Rotondo testified that he worked on the Monticello during the summer of 1942 for at least 3 to 4 months, a minimum of 2 days per week. Although Rotondo did not personally handle pipecovering, he testified in deposition that he spent most of his time in the ship's boiler room, working 6 to 8 feet away from the pipecoverers who...

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