995 F.2d 343 (2nd Cir. 1993), 980, In re Joint Eastern Dist. and Southern Dist. Asbestos Litigation

Docket Nº:980, Docket 92-9031.
Citation:995 F.2d 343
Party Name:In re JOINT EASTERN DISTRICT AND SOUTHERN DISTRICT ASBESTOS LITIGATION. Anne McPADDEN, individually and as Executrix of the Estate of Martin McPadden (deceased), Plaintiff-Appellee, v. ARMSTRONG WORLD INDUSTRIES, INC.; Fibreboard Corporation; Owens-Corning Fiberglass Corporation; Celotex Corporation; Eagle-Picher Industries, Incorporated; GAF Corpo
Case Date:May 25, 1993
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 343

995 F.2d 343 (2nd Cir. 1993)

In re JOINT EASTERN DISTRICT AND SOUTHERN DISTRICT ASBESTOS

LITIGATION.

Anne McPADDEN, individually and as Executrix of the Estate

of Martin McPadden (deceased), Plaintiff-Appellee,

v.

ARMSTRONG WORLD INDUSTRIES, INC.; Fibreboard Corporation;

Owens-Corning Fiberglass Corporation; Celotex Corporation;

Eagle-Picher Industries, Incorporated; GAF Corporation;

Pittsburgh Corning Corporation; H.K. Porter Company, Inc.;

Owens-Illinois, Incorporated; A.P. Green Industries Inc.;

U.S. Mineral Products Co.; A.C. and S. Inc.; United States

Gypsum Co.; National Gypsum Company; Babcock & Wilcox

Company; Combustion Engineering, Inc.; Rockwool

Manufacturing Co., Defendants,

v.

JOHN CRANE-HOUDAILLE INC., Defendant-Appellant.

No. 980, Docket 92-9031.

United States Court of Appeals, Second Circuit

May 25, 1993

Argued Jan. 21, 1993.

Roger P. McTiernan, Sr., New York City (Michael F. Close, Suzanne M. Halbardier, Barry, McTiernan & Moore, of counsel), for defendant-appellant.

Page 344

Steven J. Phillips, New York City (Alani Golanski, Moshe Maimon, Levy Phillips & Konigsberg), for plaintiff-appellee.

Before: PIERCE, WALKER and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

John Crane-Houdaille, Inc. ("Crane") appeals from a personal injury and wrongful death judgment, jointly entered on July 31, 1992 by the United States District Courts for the Eastern and Southern Districts of New York (Charles P. Sifton, Judge ), following a consolidated asbestos jury trial. In re Joint E. & S. Dists. Asbestos Litig., 798 F.Supp. 925 & 798 F.Supp. 940 (E. & S.D.N.Y.1992). Crane contends, inter alia, that the district court erred by admitting evidence that Crane placed warnings on its product after decedent's last exposure. We agree, and accordingly, reverse and remand for a new trial.

BACKGROUND

Martin McPadden and his wife Anne filed this diversity action for personal injuries he suffered from exposure to asbestos. Mr. McPadden then died. The complaint was amended to substitute Mrs. McPadden as executrix and to add a claim for wrongful death. Crane was one of 18 companies named as co-defendants. Co-defendant Owens-Corning Fiberglas ("OCF") impleaded six other companies.

In March 1991, the district court consolidated over 600 lawsuits where each victim alleged some exposure at one or more of over 40 power-generating stations in New York State. Trial of the first 48 of these 600 cases began on April 1, 1991. Although OCF had impleaded Crane as a third-party defendant in five cases, McPadden was the only lawsuit where Crane was a direct defendant. Thirteen days before the trial was to begin, the district court permitted OCF to implead over 200 companies--generally other manufacturers, site owners, and contractors.

The 48 cases were tried on a reverse bifurcated basis, i.e., the jury first determined whether each plaintiff had an asbestos-related disease and the amount of his damages, and then determined which defendants were liable to each plaintiff. In the first phase, Martin McPadden testified that beginning in 1957, while serving in the Navy aboard the U.S.S. Willis A. Lee, he worked as a fireman striker and later as a machinist's mate. Everything in the engine room was covered in insulation that contained asbestos. Among the insulation identified was Crane's encapsulated asbestos valve packing--a sealing product used to control or stop leakage from coming up through the shaft of a valve.

McPadden later worked for Consolidated Edison from 1962 to 1968, first at the Astoria and then at the Ravenswood Powerhouses. McPadden testified that he used Crane valve packing at Ravenswood. He worked at the General Motors Building for a year in 1968-69, at the Exxon Building from 1969-72, and then at Orbach's in the A & S Plaza (on Woodhaven Boulevard, Queens) until 1973. At these sites, he was again exposed to other asbestos products--but not Crane's.

The first phase of the trial resulted in plaintiffs' verdicts in 45 of the 48 cases. The jury found that the McPadden family had suffered $5,917,781.85 in total damages, itemized as follows:

Type Jury Award Past lost income $ 565,981.85 Consortium/economic 127,300.00 Consortium/non-economic 400,000.00 Past pecuniary loss 17,500.00 Future pecuniary loss 294,000.00 Funeral expenses 4,500.00 Lost services 8,500.00 Pain and suffering 4,500,000.00 The liability phase of the 48 cases began a few weeks later before the same jury. During this trial, most of the cases settled; and McPadden settled with 16 of the defendants for $1,589,000.00. After all the settlements, only two defendants--Crane in McPadden and Keene in Malcolm v. National Gypsum Co. (decision filed herewith)-- 995 F.2d 346 remained for the jury to render a...

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