Celotex Corp. v. Wilson

• Decision Date: 29 April 1992
• Citation: 607 A.2d 1223
• Parties: The CELOTEX CORPORATION, Defendant Below, Appellant, v. John WILSON, Ruth Wilson, Edward Kline, Pauline Kline, Charles Watts, Verna Watts, Alton Coney, Phyllis Coney, Plaintiffs Below, Appellees. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1223

607 A.2d 1223

The CELOTEX CORPORATION, Defendant Below, Appellant, v. John WILSON, Ruth Wilson, Edward Kline, Pauline Kline Charles Watts, Verna Watts, Alton Coney, Phyllis Coney, Plaintiffs Below, Appellees.

Supreme Court of Delaware.

Submitted: April 29, 1992.

Decided: May 27, 1992.

Upon appeal from the Superior Court. AFFIRMED.

Robert B. Anderson (argued), and Karen S. Brehm of McCarter & English, Wilmington, for appellant.

Thomas C. Crumplar (argued), and Mary Ann Matuszewski of Jacobs & Crumplar, P.A., Wilmington, for appellees.

Before VEASEY, C.J., MOORE, and HOLLAND, JJ.

HOLLAND, Justice:

Following a four week jury trial in the Superior Court, ¹ the defendant-appellant, The Celotex Corporation ("Celotex"), was found liable to the plaintiffs-appellees, Edward Kline, Pauline Kline, John Wilson, Charles Watts, and Alton Coney, for their asbestos-related injuries, and to plaintiffs-appellees, Edward Kline, Pauline Kline, Ruth Wilson, Verna Watts, and Phyllis Coney for their loss of consortium claims. Celotex has appealed from the individual judgments entered following the jury's verdicts and from the order denying Celotex's motion for a new trial. ² This Court consolidated the appeals. ³

Celotex has raised two issues in this appeal. The first two contentions relate to Delaware's Jury Selection and Service Act ("the Delaware Jury Act"). 10 Del.C. ch. 45. According to Celotex, the Superior Court violated 10 Del.C. § 4511, and committed reversible error per se, by using a special jury questionnaire that permitted jurors to excuse themselves from service, without a specific showing to and finding by the Superior Court of undue hardship, extreme inconvenience, or public necessity. Celotex also contends that, by allowing juror self-exclusion, the special questionnaire may have violated its statutory right to a jury panel drawn from a "fair cross section" of the community. 10 Del.C. § 4501 (Supp.1990). Finally, Celotex asserts that the Superior Court abused its discretion in admitting "extensive" evidence during trial of the plaintiffs' risks of developing cancer.

We have reviewed each of the issues raised by Celotex. We find no merit in any of Celotex's contentions. Consequently, the judgments of the Superior Court are affirmed.

Facts

The underlying facts are not in dispute. The plaintiffs, Edward Kline, Pauline Kline, John Wilson, Charles Watts, and Alton Coney, filed complaints in the Superior Court alleging, inter alia, that as a result of their exposure to Celotex's asbestos-containing products, they had developed asbestos-related pleural disease and pulmonary asbestosis. ⁴ These plaintiffs sought compensatory damages for both physical pain and suffering, as well as mental anguish, including their fear of developing cancer. Their spouses sought damages for loss of consortium. ⁵ In preparation for trial, two juror qualification questionnaires were sent simultaneously to approximately 400 prospective jurors pursuant to 10 Del.C. § 4508. ⁶ The first form was the standard questionnaire used by the Superior Court. 10 Del.C. § 4508 (Supp.1990). Along with the standard jury questionnaire, the Superior Court also sent out an additional special asbestos jury qualification questionnaire. The initial inquiry on the special questionnaire was as follows:

Would you be available to serve on a jury for up to 4 weeks beginning June 12, 1989, excluding weekends and holidays? (original emphasis).

In answering this question, bear in mind that it is every prospective juror's civic obligation to participate when called for jury duty unless it would be an extreme hardship or extreme inconvenience.

Yes ____ No ____

If a prospective juror responded "no" to this question, the juror was automatically excused from jury service in the trial of this matter.

Celotex filed an objection to this jury selection procedure and, in particular, to the use of the first inquiry on the special jury qualification questionnaire. ⁷ The record reflects that, at the time of Celotex's objection, 273 responses had been received out of the 400 questionnaires that were mailed. The record also reflects that 110 prospective jurors were automatically excused because of their negative response to the first inquiry on the special asbestos jury qualification questionnaire.

In its objection before the Superior Court, Celotex asserted that the initial inquiry on the special asbestos jury questionnaire violated 10 Del.C. § 4511 ⁸, because it allowed prospective jurors to excuse themselves from jury service without a specific showing to and determination by the Superior Court of undue hardship, extreme inconvenience, or public necessity. According to Celotex, this procedure may have violated its statutory right to a jury which represented a "fair cross section" of the community. 10 Del.C. § 4501. The Superior Court denied this challenge on the basis that Celotex had failed to establish that the jury selection procedure which was utilized in the case sub judice violated any of the stated policies or procedures of the Delaware Jury Act. ⁹

Celotex also filed a pretrial motion in limine, challenging the admissibility of evidence regarding the plaintiffs' risks of developing cancer. Celotex made specific objection to the proposed testimony of the plaintiffs' witness, Joseph C. Wagoner, Sc.D., an epidemiologist. The plaintiffs proffered that Dr. Wagoner would present expert testimony regarding the risks of developing cancer among human populations exposed to asbestos. The Superior Court ruled that the plaintiffs suffering from asbestos-related diseases could present limited testimony by Dr. Wagoner and other limited evidence regarding plaintiffs' risks of developing cancer.

The jury rendered a total verdict of $2,450,000 in favor of the plaintiffs. ¹⁰ Celotex subsequently filed a motion to alter or amend the judgments and a motion for a new trial. In support of its motions, Celotex argued that there was an insufficient evidentiary basis to sustain a claim for damages because of a fear of cancer and that the cancer evidence had permitted the "dread specter of cancer" to pervade the trial. The Superior Court denied Celotex's motion for a new trial. ¹¹

Delaware Jury Selection and Service Act

Celotex argues that the utilization of any jury selection procedures which contravene any provision of the Delaware Jury Act is reversible error per se. ¹² That argument is contrary to the express and unambiguous language of the statute. Even if the procedures being challenged are admittedly departures from the provisions of the statute, this Court must determine whether those departures constituted "a substantial failure to comply" with the Delaware Jury Act. 10 Del.C. § 4512(b).

The issue of what constitutes a "substantial failure to comply" with the Delaware Jury Act is a question of first impression before this Court. However, the Delaware Jury Act was patterned after the federal Jury Selection and Service Act, 28 U.S.C. §§ 1861 et seq. ("the federal Jury Act"). ¹³ See State v. Robinson, Del.Super., 417 A.2d 953 (1980). We have found the relevant federal precedents particularly didactic in construing the analogous provisions of the Delaware Jury Act.

The Delaware Jury Act is intended to establish effective safeguards against impermissible forms of discrimination and arbitrariness and to provide litigants with jury pools that represent a fair cross section of the community. Compare United States v. Evans, 526 F.2d 701, 706 (5th Cir.1976) (analyzing the objectives of the federal Jury Act). The declaration of policy in the Delaware Jury Act provides:

It is the policy of this State that jurors serving in each county shall be selected at random from a fair cross section of the population of that county and that all qualified persons shall have an opportunity to be considered for jury service and an obligation to serve as jurors when summoned for that purpose.

10 Del.C. § 4501 (Supp.1990). ¹⁴ To achieve those policy objectives, the Delaware Jury Act, like its federal counterpart, embodies two important general principles: (1) random selection of juror names from the county in which court is held; and (2) determination of juror disqualifications, excuses, exemptions and exclusions on the basis of objective criteria only. See United States v. Butts, 514 F.Supp. 1225 (M.D.Fla.1981) (quoting 1968 U.S.Code Cong. & Admin.News 1792). Thus, consistent with the analytical framework set forth in the precedents construing the federal Jury Act, we conclude that a "substantial failure to comply" with the Delaware Jury Act will be found only if the noncompliance contravenes either of the foregoing two basic principles. Accord United States v. Savides, 787 F.2d 751, 754 (1st Cir.1986).

"Jury service is a duty as well as a privilege of citizenship." Thiel v. Southern Pacific Co., 328 U.S. 217, 224, 66 S.Ct. 984, 987, 90 L.Ed. 1181 (1946). The "obligation to serve," pursuant to the declaration of policy in the Delaware Jury Act, is implemented by Section 4511(b). That Section provides that any prospective juror, who is not disqualified ¹⁵, may be excused from jury service by the Superior Court "only upon a showing of undue hardship, extreme inconvenience or public necessity." 10 Del.C. § 4511(b) (Supp.1990) (emphasis added). Thus, the provisions of 10 Del.C. § 4511(b) require the court to inquire into the specific reason given by a prospective juror who desires to be excused from service and for the court to determine whether the substantial statutory prerequisites to granting a personal request for excusal have been satisfied. See Riley v. State, Del.Supr., 496 A.2d 997, 1009 (1985). See also City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F.Supp. 1240, 1256-57 (N.D.Ohio 1980).

Accordingly, the selection procedure used by the Superior Court in this case, automatically excusing prospective jurors based on an ex parte response to a single question in the...