Coward v. Owens-Corning Fiberglas Corp.

• Decision Date: 14 April 1999
• Citation: 1999 PA Super 82,729 A.2d 614
• Parties: Walter J. COWARD, Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, et al. Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant. Albert L. Vecchione and Loretta Vecchione, h/w, Appellees, v. Owens-Corning Fiberglas, Corporation, et al. Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant. William J. Watts, Appellee, v. Owens-Corning Fiberglas Corporation, et al. Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant. Joseph Poplaski and Loretta Poplaski, h/w, Appellees, v. Owens-Corning Fiberglas Corporation, et al. Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant.
• Court: Pennsylvania Superior Court

729 A.2d 614

1999 PA Super 82

Walter J. COWARD, Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, et al.

Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant.

Albert L. Vecchione and Loretta Vecchione, h/w, Appellees, v. Owens-Corning Fiberglas, Corporation, et al.

Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant.

William J. Watts, Appellee, v. Owens-Corning Fiberglas Corporation, et al.

Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant.

Joseph Poplaski and Loretta Poplaski, h/w, Appellees, v. Owens-Corning Fiberglas Corporation, et al.

Appeal of Owens-Corning (Formerly Known as Owens-Corning Fiberglas Corporation), Appellant.

Superior Court of Pennsylvania.

Argued February 4, 1999.

Filed April 14, 1999.

Ann C. Lebowitz, Philadelphia, for Owens-Corning, appellant.

Edward M. Nass, Philadelphia, for appellees.

Before JOHNSON, SCHILLER, and BROSKY, JJ.

JOHNSON, J.:

¶ 1 In this product liability case, we are asked to determine whether a plaintiff should be afforded the use of a rebuttable presumption that he or she would have followed an adequate warning had one been given where warnings or instructions are required to make a product non-defective and a warning has not been given. We conclude that Pennsylvania jurisprudence poses no impediment to the adoption of such a "heeding presumption." Accordingly, we find no error in the rulings of the trial court and, for the following reasons, we affirm.

¶ 2 Owens-Corning Fiberglas Corporation (Owens-Corning or the company) appeals the order denying its motions for post-trial relief in four personal injury actions arising from the plaintiffs' exposure to asbestos products that Owens-Corning allegedly manufactured. Owens-Corning sought judgment notwithstanding the verdict, or in the alternative, a new trial, contending that the plaintiffs failed to adduce sufficient evidence to establish product identity and that the court abused its discretion in charging the jury on several elements of the plaintiffs' evidentiary burden.

¶ 3 Walter Coward, Joseph and Loretta Poplaski, Albert and Loretta Vecchione, and William Watts (Plaintiffs) commenced the underlying actions following medical diagnoses of mesothelioma or carcinoma in each of the male plaintiffs. Owens-Corning did not dispute Plaintiffs' claim that these conditions were caused by exposure to asbestos dust and fibers the men encountered in their respective places of employment, but asserted that there was insufficient evidence to establish that Owens-Corning manufactured the products to which the men were exposed.

¶ 4 Following extensive discovery, the court consolidated the matters for trial pursuant to Pa.R.C.P. 213(a), and conducted a reverse-bifurcated trial. In Phase I of the trial, the jury determined that each of the male plaintiffs developed their respective medical conditions as a result of exposure to asbestos. At the end of Phase I, the jury assessed damages as follows: to Coward, $1,430,000; to Poplaski, $1,529,000; to Vecchione, $2,134,000; and to Watts, $75,000. The jury also awarded damages for loss of consortium to Mrs. Poplaski for $300,000, and to Mrs. Vecchione for $550,000. Owens-Corning did not mount a defense during Phase I.

¶ 5 In Phase II of the trial, a second jury identified Owens-Corning products, as well as those of defendants GAF Corporation and Flintkote Company, as the specific cause of Plaintiffs' injuries. The trial court, the Honorable Edward B. Rosenberg, molded the respective verdicts to prorate the award of damages between the three defendants and reduced the Coward, Vecchione and Poplaski verdicts to reflect the plaintiffs' participation in the Johns-Manville Trust. See Baker v. AC & S, Inc., 1998 Pa.Super. Lexis 1019, withdrawn, modified, 729 A.2d 1140 (en banc) (1999). Owens-Corning filed a Motion for Post Trial Relief incorporating requests for judgment notwithstanding the verdict (judgment n.o.v.), or in the alternative, a new trial. The court denied both motions and added damages for delay pursuant to Pa.R.C.P. 238. Owens-Corning filed this appeal. ¶ 6 Owens-Corning raises six issues on appeal, arising from the trial court's denial of its motions for judgment n.o.v and new trial. Those issues are stated by Owens-Corning as follows:

1. Did plaintiffs' remote proof of mere workplace presence fail to satisfy the strict product identification standards that were mandated in asbestos cases by [the Superior Court's] decisions in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1980), and Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989)?

2. Did the instructions of the lower court improperly encourage the jury to return liability verdicts based on a reduced evidentiary burden that is inconsistent with [the Superior Court's] controlling decisions in Eckenrod and Samarin ?

3. Is a new trial required because the trial court prejudicially compounded its instructional error in inequitably applying its rules on burden of proof?

4. Did plaintiffs fail to establish the important element of causation in this warning defect case where they adduced no evidence that they would have avoided the risks of defendant's product if they had been warned or more adequately warned of its defects?

5. Is a new trial required because of prejudicial error in the examination of a defense expert and inflammatory comments by a plaintiff-appellee?

6. Is a new trial required on damages where the lower court's instructions on hedonic damages and mortality tables improperly encouraged the jury to return inflated damage awards that were based on confusion, conjecture, and impossible life expectancies in these cases?

Brief for Appellant Owens-Corning at 4.

¶ 7 Owens-Corning's fourth issue, questioning the propriety of Plaintiffs' reliance on the so-called "heeding presumption" to establish legal causation, raises a matter of first impression fundamental to the disposition of this case. Accordingly, we commence our discussion with that issue and address the remaining issues in the order presented.

¶ 8 Upon review of Owens-Corning's brief, we note that the company argues both the sufficiency of Plaintiffs' proof and alleged instructional error by the court. Id. at 37. However, because our disposition of the legal issues posed by the "heeding presumption" necessarily implicates the adequacy of the court's instructions, we will confine our analysis to whether the presumption is viable as applied in this case.

¶ 9 Our courts have opined, generally, that to establish legal causation, a plaintiff asserting a failure-to-warn defect claim "must demonstrate that the user of the product would have avoided the risk had he or she been warned of it by the seller." Phillips v. A-Best Products Co., 542 Pa. 124, 131, 665 A.2d 1167, 1171 (1995). See also Demmler v. SmithKline Beecham Corp., 448 Pa.Super. 425, 671 A.2d 1151, 1155

(reasoning that "[a]bsent proof that a more thorough or more explicit warning would have prevented Mrs. Demmler's use of [SmithKline's product], [the plaintiffs] cannot establish that SmithKline's alleged failure to warn was the proximate cause of Mrs. Demmler's injuries"). Owens-Corning contends that these decisions are dispositive of the issue of causation in this case because, as in Phillips and Demmler, the plaintiffs here failed to adduce any evidence that they would have avoided the hazard inherent in the underlying product even if they had been warned of its existence. Brief for Appellant, supra at 37-38. The trial court declined to require such proof, instead applying a rebuttable presumption at law to establish that had Owens-Corning provided an adequate warning, the male plaintiffs would have heeded it and acted to avoid asbestos exposure.

Trial Court Opinion, 9/4/98, at 27. The court described the presumption as a "logical corollary" of Restatement (Second) of Torts, Section 402A, comment j, which provides that "[w]here a warning is given the seller may reasonably assume that it has been read and heeded." Id. Plaintiffs argue that the court's ruling is supported by appellate decisions in thirteen other states, and a prediction by the United States Court of Appeals for the Third Circuit that the Pennsylvania Supreme Court would adopt the "heeding presumption" to establish legal causation in failure-to-warn defect cases. Brief for Appellees at 38-39. See Pavlik v. Lane Limited/Tobacco Exporters International, 135 F.3d 876, 883 (1998) ("We now predict that Pennsylvania would adopt a rebuttable heeding presumption as a logical corollary to comment j.").

¶ 10 Strict liability was adopted in Pennsylvania "when it became clear that the circumstances behind some injuries would make negligence practically impossible for an injured plaintiff to prove." Walton v. Avco Corp., 530 Pa. 568, 576, 610 A.2d 454, 458 (1992). Our Supreme Court has molded Pennsylvania jurisprudence accordingly to assure injured plaintiffs a right of recovery, regardless of fault, if their injuries were caused by a product lacking any element necessary for its intended use. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 94, 337 A.2d 893, 899 (1975); Azzarello v. Black Brothers Company, Inc., 480 Pa. 547, 559, 391 A.2d 1020, 1027 (1978). This development, characterized by the adoption of Restatement (Second) of Torts, Section 402A, "reflects the social policy that a seller or manufacturer is best able to shoulder the costs and to administer the risks involved when a product is released into the stream of commerce." Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189-90 (1997). That policy derives from the recognition that "[i]n an era of giant corporate structures, utilizing the national media to sell their wares ... [it is] the consumer who must be protected." Azzarello, supra at 553, 391 A.2d at 1023-24. The Supreme Court has concluded accordingly that "no...