Burton v. Johns-Manville Corp.
| Decision Date | 10 June 1985 |
| Docket Number | Civ. A. No. 81-1934. |
| Citation | 613 F. Supp. 91 |
| Parties | Joyce Ann BURTON, Administratrix of the Estate of Paul S. Burton, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Robert Jennings, Henderson & Goldberg, Pittsburgh, Pa., for plaintiff.
Kenneth S. Robb, Doherty & Robb, Pittsburgh, Pa., for Auto Friction Corp.
Plaintiff commenced this diversity action on October 29, 1981, against the defendant Auto Friction Corporation and others under the Pennsylvania Wrongful Death and Survival Acts to recover damages for the death of her husband from his exposure to asbestos dust and fibers emitted, inter alia, by brake linings sold to decedent's employer by the defendant Auto Friction Corporation.
A jury awarded damages of $292,509 against Auto Friction on May 10, 1985, and it then filed a motion for judgment N.O.V. or in the alternative for a new trial, which, along with plaintiff's motion for inclusion of delay damages, are presently before the court. For the following reasons, the defendant's motions will be denied and the plaintiff's motions granted.
The only point in support of either of defendant's motions which requires discussion is point 4 in support of its motion for judgment N.O.V.
Defendant contends in point 4 that: "The plaintiff failed to produce competent testimony to establish that the Decedent's possible exposure to defendant's products was a substantial factor in bringing about Decedent's injuries and death."
The two main principles applicable to our consideration of defendant's motion for judgment N.O.V. are: (1) the court must view the evidence in the light most favorable to the party who secured the jury verdict, and (2) a jury verdict may not stand if it is based on mere speculation. Eastern Associated Coal v. Aetna Cas. & Sur. Co., 632 F.2d 1068, 1074 (3d Cir.1980), cert. denied, 451 U.S. 986, 101 S.Ct. 2320, 68 L.Ed.2d 843 (1981).
At trial the plaintiff introduced evidence, viewed in the light most favorable to the plaintiff, that for a period of approximately 10 years while working for the Beck-Arnley Company in Pittsburgh, Pennsylvania, plaintiff's decedent was subjected to a substantial exposure to asbestos dust and fibers from old brake linings, which were the products of manufacturers whose identity plaintiff did not attempt to establish at trial, and also from new brake linings, approximately 98% of which were supplied to decedent's employer by the defendant Auto Friction Corporation, and that the decedent died of adenocarcinoma of the lung of which his exposure to asbestos at Beck-Arnley was a major cause.
Specifically, plaintiff produced David Keith Parkinson, M.D. who first testified that, based on his examination of the medical records of the decedent (plaintiff's exhibits 1-6) it was his opinion that the decedent died of adenocarcinoma of the right lung. (Tr. 14-16).1 In addition, a death certificate, plaintiff's exhibit 6, introduced under Rule 803(9) Fed.R.Evid. over defendant's objection, listed adenocarcinoma of the lung as the cause of decedent's death,2 and decedent's hospital record, plaintiff's exhibits 1-5 supra, introduced without objection, provided independent evidence that plaintiff had, and was being treated for, adenocarcinoma of the lung.
Next, in response to a hypothetical question, Dr. Parkinson testified that in his opinion to a reasonable degree of medical certainty decedent was subjected to a substantial exposure to asbestos dust during his employment at Beck-Arnley, (Tr. 18-22) and that the grinding operation in the plant (i.e., grinding of new brake linings 98% of which were supplied by defendant Auto Friction) made a significant contribution to decedent's exposure there to asbestos dust. (Tr. 24).3
Finally, the doctor was asked this question:
Doctor, on the basis of the facts that I have given you in the hypothetical, hypotheticals, since I've given you several facts at various times, on the basis of assuming those facts in evidence, as well as your knowledge and experience involving brake lining type activities, as well as your knowledge and experience with asbestos related disease questions, do you have an opinion to a reasonable degree of medical certainty as to whether Mr. Burton's exposure to asbestos at the Beck/Arnley plant played any role in the development of his adenocarcinoma of the lung?
(Tr. 26-27).
To which he gave this answer: "I believe it played a significant, major role in the induction of his adenocarcinoma." (Tr. 27).
On cross-examination, however, Dr. Parkinson testified that he could not offer an opinion as to how much the exposure to asbestos from grinding of new brake linings (i.e., defendant's products) contributed to plaintiff's lung cancer. At Tr. 72 counsel for defendant asked Dr. Parkinson on cross-examination, "... I'm concerned solely with his exposure to any possible asbestos fibers that came from the grinding of the new brake lining."
The Doctor answered:
Defendant argues from this that plaintiff's evidence was fatally deficient because, since her expert was unable to opine on cross-examination that defendant's product was a substantial cause of decedent's lung cancer and death, there was no evidence from which the jury properly could find the necessary causal relationship between defendant's defective product and decedent's disease and death. We disagree.
The law does not require that each of concurring contributing causes itself be sufficient to bring about the harm of which plaintiff complains. It is sufficient that all concurring causes be a substantial factor in bringing about that harm. Here, Dr. Parkinson testified that decedent's exposure to asbestos fibers at Beck-Arnley was a significant or major factor in causing the adenocarcinoma of the lung from which the decedent died and that asbestos from new brake linings sold to Beck-Arnley by the defendant Auto Friction constituted a significant portion of the asbestos dust and fibers to which decedent was exposed. That evidence was a sufficient basis for the jury to conclude under the instructions of the court on the law as it pertains to legal cause that defendant's defective product was a substantial contributing cause of decedent's disease and death. It was not necessary that plaintiff prove through expert opinion or otherwise that defendant's asbestos dust and fibers independent of other asbestos dust and fibers were a substantial contributing cause of the decedent's disease and death. Of course the doctor could not testify as to how much any particular asbestos product, among many, contributed to decedent's disease and death, but he could, and did, testify that asbestos was the cause and that defendant's product contributed substantial asbestos dust and fibers to decedent's environment. That was enough. Indeed, whether he realized it or not, the net effect of Dr. Parkinson's testimony on direct was that the asbestos emitted by defendant Auto Friction's product was a substantial factor in bringing about decedent's disease and death.
The law in that regard was set forth in the following charge approved by the Pennsylvania Supreme Court in Menarde v. Philadelphia Transp. Co., 376 Pa. 497, at 503, 103 A.2d 681, 685 (1954):4
Plaintiff is entitled to recover for all the injuries caused by defendant's negligence. This question of causation of the particular injuries complained of is for you, the Jury, to determine from the evidence before you. For the defendant to be liable for plaintiff's injuries, you need not find that defendant's negligence was the sole cause of...
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