Burton v. Johns-Manville Corp., Civ. A. No. 81-1934.

CourtUnited States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
Writing for the CourtKenneth S. Robb, Doherty & Robb, Pittsburgh, Pa., for Auto Friction Corp
Citation613 F. Supp. 91
PartiesJoyce Ann BURTON, Administratrix of the Estate of Paul S. Burton, Deceased, Plaintiff, v. JOHNS-MANVILLE CORPORATION, et al., Defendants.
Docket NumberCiv. A. No. 81-1934.
Decision Date10 June 1985

613 F. Supp. 91

Joyce Ann BURTON, Administratrix of the Estate of Paul S. Burton, Deceased, Plaintiff,
v.
JOHNS-MANVILLE CORPORATION, et al., Defendants.

Civ. A. No. 81-1934.

United States District Court, W.D. Pennsylvania.

June 10, 1985.


613 F. Supp. 92

Robert Jennings, Henderson & Goldberg, Pittsburgh, Pa., for plaintiff.

Kenneth S. Robb, Doherty & Robb, Pittsburgh, Pa., for Auto Friction Corp.

MEMORANDUM OPINION

DIAMOND, District Judge.

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.

Defendant's Motions for N.O.V. or New Trial

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,

613 F. Supp. 93
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).

613 F. Supp. 94

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:

A I cannot tell you how much that contributed to the induction of his lung cancer.
Q If at all?
A Well, if at all, but I suspect it did
...

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6 practice notes
  • Keene Corp., Inc. v. Hall, No. 236
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...aff'd, 969 F.2d 1424 (2nd Cir.1992) (expert opinion based on work history and medical records); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 93 (W.D.Pa.1985) (same); Lockwood v. A.C. & S., Inc., 109 Wash.2d 235, 744 P.2d 605, 613 (1987) (trial court should consider work history, medical ......
  • Dunn v. Owens-Corning Fiberglass, Civ. No. 1987/238.
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • September 27, 1991
    ...contributing cause of plaintiff's injury. Defendant relies for this proposition solely upon the case of Burton v. Johns-Manville Corp., 613 F.Supp. 91 (W.D.Pa.1985). Burton, however, does not stand for the proposition that expert medical testimony is necessary to link a specific product to ......
  • Spaur v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • United States State Supreme Court of Iowa
    • January 19, 1994
    ...an inference that defendant's product was a substantial contributing cause of plaintiff's injury); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 94-95 (W.D.Pa.1985) (causation established by evidence that asbestos was the cause of plaintiff's disease and defendant's product was a substant......
  • Payne v. Schneider Nat. Carriers, Inc., Civil Nos. 09-559-GPM
    • United States
    • U.S. District Court — Southern District of Illinois
    • August 30, 2010
    ...of a death certificate stating the cause of death is admissible under the Federal Rules of Evidence); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 93 n. 2 (W.D.Pa.1985) (same). Moreover, Goebelbecker, as an expert witness, can base his opinions on inadmissible hearsay evidence, provided ......
  • Request a trial to view additional results
6 cases
  • Keene Corp., Inc. v. Hall, No. 236
    • United States
    • Court of Special Appeals of Maryland
    • September 1, 1992
    ...aff'd, 969 F.2d 1424 (2nd Cir.1992) (expert opinion based on work history and medical records); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 93 (W.D.Pa.1985) (same); Lockwood v. A.C. & S., Inc., 109 Wash.2d 235, 744 P.2d 605, 613 (1987) (trial court should consider work history, medical ......
  • Dunn v. Owens-Corning Fiberglass, Civ. No. 1987/238.
    • United States
    • United States District Courts. 3th Circuit. District of the Virgin Islands
    • September 27, 1991
    ...contributing cause of plaintiff's injury. Defendant relies for this proposition solely upon the case of Burton v. Johns-Manville Corp., 613 F.Supp. 91 (W.D.Pa.1985). Burton, however, does not stand for the proposition that expert medical testimony is necessary to link a specific product to ......
  • Spaur v. Owens-Corning Fiberglas Corp., OWENS-CORNING
    • United States
    • United States State Supreme Court of Iowa
    • January 19, 1994
    ...an inference that defendant's product was a substantial contributing cause of plaintiff's injury); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 94-95 (W.D.Pa.1985) (causation established by evidence that asbestos was the cause of plaintiff's disease and defendant's product was a substant......
  • Payne v. Schneider Nat. Carriers, Inc., Civil Nos. 09-559-GPM
    • United States
    • U.S. District Court — Southern District of Illinois
    • August 30, 2010
    ...of a death certificate stating the cause of death is admissible under the Federal Rules of Evidence); Burton v. Johns-Manville Corp., 613 F.Supp. 91, 93 n. 2 (W.D.Pa.1985) (same). Moreover, Goebelbecker, as an expert witness, can base his opinions on inadmissible hearsay evidence, provided ......
  • Request a trial to view additional results

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