Campbell v. ACandS, Inc., CV-87-099-GF-PGH.

• Decision Date: 18 January 1989
• Docket Number: No. CV-87-099-GF-PGH.,CV-87-099-GF-PGH.
• Parties: Bernice E. CAMPBELL, Wife of John E. Campbell, Deceased, and Personal Representative of the Estate of John E. Campbell, Plaintiff, v. ACandS, INC., a Pennsylvania corporation, et al., Defendants.
• Court: U.S. District Court — District of Montana

704 F. Supp. 1020

Bernice E. CAMPBELL, Wife of John E. Campbell, Deceased, and Personal Representative of the Estate of John E. Campbell, Plaintiff, v. ACandS, INC., a Pennsylvania corporation, et al., Defendants.

No. CV-87-099-GF-PGH.

United States District Court, D. Montana, Great Falls Division.

January 18, 1989.

Thomas A. Baiz, Jr., Great Falls, Mont., for plaintiff.

John D. Alexander, Ugrin, Alexander, Zadick & Slovak, Kevin C. Meek, Linnell, Newhall & Martin, Great Falls, Mont., R.H. Bellingham, Moulton, Bellingham, Longo & Mather, P.C., Billings, Mont., Gary L. Walton, Poore, Roth & Robinson, P.C., Butte, Mont., Stephen D. Bell, Dorsey & Whitney, Billings, Mont., Richard A. Hayden, Bogle & Gates, Portland, Or., Van Cott, Bagley, Cornwall & McCarthy, E. Scott Savage, Salt Lake City, Utah, Charles C. Dearden, Asst. Gen. Sol., Billings, Mont., Terry R. McDaniel, Brad M. Purdy, Nelson, Rosholt, Robertson, Tolman & Tucker, Boise, Idaho, Dan G. Cederberg, Missoula, Mont., for defendants.

MEMORANDUM AND ORDER

HATFIELD, District Judge.

The plaintiff, Bernice E. Campbell, instituted the present action on her own behalf and on behalf of her deceased husband's estate, seeking compensatory and punitive damages against the defendants who are, or were, manufacturers and/or distributors of asbestos-containing products to which the plaintiff's decedent was allegedly exposed during the course of his work life as a sheetmetal worker. Campbell alleges the decedent contracted asbestos-related lung cancer as a result of his exposure to asbestos fibre contained in the products manufactured and/or marketed by the named defendants. Campbell advances claims for relief predicated upon theories of negligence and strict liability. Jurisdiction is predicated upon diversity of citizenship. 28 U.S.C. § 1332.

The matter is presently before the court on consolidated motion of the defendants requesting the court to (1) enter summary judgment in the defendants' favor with respect to Campbell's claims for punitive damage, and (2) bifurcate, for purposes of trial, the issue of causation from the remaining issues concerning liability and damages. In addition, defendants, Keene Corporation, Pittsburgh Corning Corporation, and CertainTeed Corporation, move the court to enter summary judgment in their favor upon the ground that there exists no genuine issue of material fact regarding the decedent's exposure to asbestos-containing products manufactured or marketed by these defendants, or that the decedent died as a result of asbestos exposure.

DISCUSSION

A. PUNITIVE DAMAGES

The defendants, corporate entities, facing innumerable lawsuits on a national front, advance the proposition that punitive or exemplary damages may not properly be assessed in mass tort litigation because the purpose of deterrence underlying recognition of such damages is not fostered by the continued imposition of such damages upon a corporate entity for the same course of conduct. The defendants predicate their conclusion upon the assertion that public policy dictates against the imposition of punitive damages upon a corporate entity in a manner that will lead to the virtual demise of that entity as a viable commercial enterprise. Review of decisional law extant on the subject reveals the proposition has received a mixed reaction from the courts.¹ The issue sub judice is whether Montana law allows the assessment of punitive damages in mass tort litigation where the defendant may be liable for multiple awards of punitive damages for the same conduct. The Montana Supreme Court, to this point, has not decided this precise issue. Consequently, the court must endeavor to resolve the question in the manner which it believes the Montana court would decide the question.² Having considered the statutory and decisional law of Montana which bears upon the query as framed, the court is compelled to conclude that the propriety of awarding punitive damages presents an issue to be determined by the trier of fact on a case by case basis.

Mont.Code Ann. § 27-1-220 (1987) provides that "a judge or jury may award, in addition to compensatory damages, punitive damages for the sake of example and for the purpose of punishing a defendant." Punitive damages may properly be awarded for tortious conduct committed under circumstances of aggravation. See, Hageman v. Arnold, 79 Mont. 91, 254 P. 1070 (1927).³ An award of punitive damages, however, cannot be predicated upon conduct which constitutes mere negligence. See, Owens v. Parker Drilling Company, 207 Mont. 446, 676 P.2d 162 (1984); Cashin v. Northern Pacific Railway Co., 96 Mont. 92, 28 P.2d 862 (1934). Punitive damages may be recovered in a products liability action. See, Mont.Code Ann. § 27-1-220(2)(b) (1987).

The propriety of an award of punitive damages is an issue to be determined by the trier of fact. See, Mont.Code Ann. § 27-1-221(6) (1987); see also, Eliason v. Wallace, 209 Mont. 358, 680 P.2d 573 (1984). There exists no precise rule to be followed in ascertaining the proper award of punitive damages. See, Toeckes v. Baker, 188 Mont. 109, 611 P.2d 609 (1980). Rather, in assessing the proper award of punitive damages in a particular case, the finder of fact should consider: the nature of the alleged misconduct of the defendant, the extent and the effect of the misconduct on the lives of the plaintiff and others, the probability of future reoccurrence of such misconduct, the relationship between the parties, the relative wealth of the defendant, and the facts and circumstances surrounding the misconduct and the amount of the actual damages awarded. Safeco Insurance Co. v. Ellinghouse, ___ Mont. ___, 725 P.2d 217, 227 (1986).

The essence of the defendants' argument is that the goal of deterrence upon which the principle of punitive damages is based is simply not fostered by the continued imposition of such damages upon these defendants. In support of their conclusion, the defendants impress upon the court that the allegedly tortious conduct for which the typical plaintiff in asbestos litigation seeks to recover punitive damages could not be repeated today in view of the stringent regulations imposed by the government with respect to the marketing of asbestos-containing products. Moreover, the defendants submit that because they have been adequately punished through the imposition of large awards of compensatory damages in cases throughout the nation, the continued imposition of punitive damages serves no purpose within the contemplation of the statutory or common law of Montana authorizing punitive damages. The court is unpersuaded by the defendants' argument.

Under Montana law, punitive damages are viewed as an extraordinary remedy which must be applied with caution in order that imposition of such damages in a particular case does not reach the point of becoming unreasonable. See, Safeco Insurance Co. v. Ellinghouse, 725 P.2d at 227. At the same time, the court is mindful that "punitive damages when awarded should be of such significant amount as to serve the office of deterrence by punishing the defendant and as well warn others." Gibson v. Western Fire Insurance Co., 210 Mont. 267, 295, 682 P.2d 725, 740 (1984). Only where it appears an award of punitive damages has resulted from passion or prejudice, rather than from reason and justice, is a court justified in determining, as a matter of law, that the award of punitive damages imposed by the finder of fact is properly set aside. See, Safeco Insurance Co. v. Ellinghouse, 725 P.2d at 227.

The defendants ask this court to declare, as a matter of law, that the further imposition of punitive damages upon them in this case, or any other asbestos litigation in the State of Montana in which they are involved, would be unreasonable and excessive. The defendants, however, have failed to establish the factual predicate necessary to warrant this court in removing the issue of punitive damages from the province of the finder of fact. Even if the defendants were to support their motion with documentation regarding their individual financial woes, the court would be hesitant to remove the issue of punitive damages from the province of the trier of fact. The court is firmly convinced that a properly instructed jury will best be able to assess whether an award of punitive damages against the named defendants individually is warranted under the circumstances of this case. The court will not abrogate the plaintiff's right to trial by jury upon the issue of punitive damages based upon the mere assertion that the objectives sought to be accomplished by the imposition of punitive damages will not be fostered by imposition of such damages in the case at bar. The propriety of awarding punitive damages presents an issue appropriately determined by the enlightened conscience of an impartial jury, which can determine upon the basis of properly admitted evidence whether a particular defendant has been sufficiently punished for his tortious conduct, and whether the extent of that punishment is sufficient to deter any other individual or entity from acting in similar fashion.⁴ Consequently, the deterrent effect sought to be accomplished goes beyond the simple attempt of deterring these particular defendants from repeating the same tortious conduct, but extends to the public in general. With specific reference to the manufacture and distribution of consumer products, the desired effect is to deter all individuals or entities involved in the manufacture and distribution of consumer products from placing the public at risk by engaging in similar conduct.

As an alternate basis for their motion, the defendants submit an award of punitive damages in the case at bar would violate the due process clause of the fourteenth amendment to the United States Constitution. Specifically, the defendants contend the substantive standard for punitive damages in the State of Montana should be stricken as...