Joint Eastern Dist. and Southern Dist. Asbestos Litigation, In re
| Decision Date | 25 May 1993 |
| Docket Number | D,CRANE-HOUDAILLE,No. 980,980 |
| Citation | 995 F.2d 343 |
| Parties | 38 Fed. R. Evid. Serv. 1213, Prod.Liab.Rep. (CCH) P 13,528 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. JOHNINC., Defendant-Appellant. ocket 92-9031. |
| Court | U.S. Court of Appeals — Second Circuit |
Roger P. McTiernan, Sr., New York City (Michael F. Close, Suzanne M. Halbardier, Barry, McTiernan & Moore, of counsel), for defendant-appellant.
Steven J. Phillips, New York City (Alani Golanski, Moshe Maimon, Levy Phillips & Konigsberg), for plaintiff-appellee.
Before: PIERCE, WALKER and McLAUGHLIN, Circuit Judges.
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.
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 liability verdict.
During the liability trial, McPadden read to the jury the deposition testimony of Vance Vorhees, a former Crane executive vice president. The following excerpt from Vorhees's 1983 deposition was read to the jury over Crane's objection:
Q. Has Crane ever placed any warnings on any other asbestos-containing products--
A. Yes.
Q. --regarding health hazards of asbestos?
A. Yes.
Q. When was the first warning placed on a product or packaging?
A. About two years ago.
After a six-month trial, the jury reached a liability verdict, finding Crane 10% responsible for McPadden's death. Crane then filed written submissions on the molding of the verdict as well as a motion for omnibus post-trial relief. In two decisions dated July 28, 1992, the district court denied these motions. In particular, the district court rejected Crane's argument that the court violated Fed.R.Evid. 407 by admitting evidence of subsequent remedial measures, viz., the warning labels Crane began to use in the early 1980's. Molding the verdict in accordance with various New York statutes to reflect different degrees of fault among defendants and to add interest to the award, the district court then entered a judgment for McPadden against Crane for $1,562,725.40, plus post-verdict, prejudgment interest.
Crane marshals a parade of attacks on both the liability and the damages verdicts. We find it necessary to focus on only one evidentiary error that seriously prejudiced the liability verdict. The district court erred in admitting evidence that Crane placed warnings on its asbestos product after decedent's last exposure. The warnings were subsequent remedial measures and, as such, inadmissible under Fed.R.Evid. 407.
Rule 407 excludes evidence of subsequent remedial measures "to prove negligence or culpable conduct." Fed.R.Evid. 407 (rev. ed. 1991). Such measures, however, are admissible "for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." Id. We have previously held that Rule 407 applies in all products liability actions, whether founded on negligence or strict liability in tort. See Fish v. Georgia-Pacific Corp., 779 F.2d 836, 839-40 (2d Cir.1985) (strict liability); Cann v. Ford Motor Co., 658 F.2d 54, 60 (2d Cir.1981) (...
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