Cowgill v. Raymark Industries, Inc.
| Decision Date | 06 November 1987 |
| Docket Number | No. 86-1731,86-1731 |
| Citation | 832 F.2d 798 |
| Parties | 24 Fed. R. Evid. Serv. 160 COWGILL, Stella, Executrix of the Estate of George Cowgill, deceased and individually, v. RAYMARK INDUSTRIES, INC., et al H.K. Porter Company, Inc. Pacor, Inc. Eagle-Picher Industries, J.P. Stevens & Company, Garlock, Inc., Precision Seal Division, Southern Textile Company, Armstrong World Industries, Inc., Nicolet, Inc., Keene Corporation, Owens-Illinois Glass Company, Celotex Corporation, Gaf Corporation, Fibreboard Corporation, Owens-Corning Fiberglas Corporation, Forty-Eight Insulation, Inc. Pittsburgh Corning Corporation, C.E. Refractories v. PORTER HAYDEN, CO., LaFavorite Rubber Mfg. Co. Appeal of Stella COWGILL. |
| Court | U.S. Court of Appeals — Third Circuit |
Stuart Agins, Mesirov, Gelman, Jaffe, Cramer & Jamieson, Philadelphia, Pa., for appellee GAF Corp.
Fredric L. Goldfein, Gary H. Kaplan (argued), Goldfein & Joseph, Philadelphia, Pa., for appellee Garlock, Inc.
Daniel G. Childs (argued), Joseph D. Shein, P.C., Philadelphia, Pa., for appellant.
Before BECKER, STAPLETON and HUNTER, Circuit Judges.
This appeal requires us to review evidentiary rulings made during a jury trial of a statute of limitations issue in an asbestos case. That trial was held pursuant to a mandate of this court reversing earlier summary judgments for the defendants on limitations grounds and remanding for further proceedings to resolve disputes of fact material to the limitations issue. Cowgill v. Raymark Industries, Inc., 780 F.2d 324 (3rd Cir.1985) (Cowgill I ). Much of the excluded evidence in question was offered in support of a theory that was raised for the first time on remand and that was inconsistent with the facts found by the trial court in the initial proceedings and left undisturbed on appeal. The remaining evidence at issue was excluded under Fed.R.Evid. 401 and 403. Because we conclude that the plaintiff was barred from litigating her new theory and because we find no fault with the trial court's disposition of the remaining issues, we will affirm.
From 1926 until his retirement in 1961, George Cowgill worked as a pipefitter at Mobil Oil Company's Paulsboro, New Jersey refinery. In 1979, Mr. Cowgill was contacted by Mobil and asked to return to the Paulsboro refinery for a physical examination, a request he honored on November 16, 1979. Cowgill returned for further tests on November 29 and then again on November 30. He was examined on the latter two dates by Dr. James A. Barnshaw, a Mobil physician. Dr. Barnshaw diagnosed Cowgill as having "evidence of pleural thickening indicative of asbestos exposure." App. at 742. Whether and to what extent Barnshaw communicated this finding to Cowgill is disputed.
On April 30, 1980, Mr. Cowgill returned once again to the Paulsboro refinery, this time to participate in a group discussion about asbestos-related ailments. Dr. John McNally, who led the discussion, had reviewed Mr. Cowgill's file and concurred with Dr. Barnshaw's diagnosis of pleural thickening. Dr. McNally's records suggest that he may have relayed his conclusion to Mr. Cowgill, although this matter is in dispute. The parties do agree that Dr. Barnshaw wrote to Mr. Cowgill on November 20, 1981 advising him that Mobil's studies showed "minimal pleural thickness, most likely secondary to asbestos exposure" and "no other asbestos related findings." App. at 883.
On September 30, 1982, Mr. Cowgill was diagnosed as having lung cancer. He died on March 3, 1983.
Mrs. Cowgill filed this suit on August 26, 1983 in the United States District Court for the Eastern District of Pennsylvania, raising claims under New Jersey's Wrongful Death and Survival Acts. Her complaint alleged in part:
8(a) During the aforementioned years of employment [with Mobil], decedent was caused to be exposed to raw asbestos fiber and/or finished asbestos products of defendants which exposure caused him to contract asbestos related diseases and/or injury to his body systems, lungs, respiratory system, heart and other organs. As a result of said exposure, the said decedent was caused to suffer ...:
asbestosis, carcinoma of the lung
* * *
* * *
(b) It is averred that each said asbestos related disease was diagnosed on:
asbestosis--November 20, 1981
carcinoma of the lung--September 30, 1982
(c) It is averred that plaintiff's decedent knew of each such diagnosis on or about each of the above respective dates.
In their answers, the defendants, Raymark Industries and numerous other producers and distributors of asbestos, asserted that Mrs. Cowgill's claim was barred by a two year Pennsylvania statute of limitations. 42 Pa.Cons.Stat.Ann. Sec. 5524(2) (Purdon Supp.1985). They correctly pointed out that under Pennsylvania law all asbestos-related injuries constitute a single cause of action and the limitations period is triggered with respect to that cause of action when the first of a series of asbestos-related injuries is or reasonably should have been discovered. Ross v. Johns-Manville Corp., 766 F.2d 823 (3d Cir.1985) and cases cited therein.
After completion of discovery, the parties filed a Joint Pretrial Order in which the positions of the parties with respect to the date upon which Mr. Cowgill first learned he had asbestosis were described as follows:
[Plaintiff]:
George Cowgill knew he had an asbestos-related disease or illness in November of 1981 when Dr. Barnshaw informed him for the first time that he was suffering from asbestosis. George Cowgill had no reason to suspect that he suffered from an asbestos-related condition before that time.
[Defendant]:
George Cowgill was informed that he had an asbestos-related health condition on or about November 30, 1979 by Dr. Barnshaw.
Thereafter the defendants brought on motions for summary judgment based on their limitations defenses. Mrs. Cowgill resisted these motions on the grounds (1) that New Jersey law governed the limitations period and the point at which her cause of action accrued, and (2) that although Mr. Cowgill had an asbestos-related injury more than two years before the filing of suit, he neither knew nor should have known about that injury until November of 1981. The court, however, concluded that Pennsylvania law governed and that "it [was] factually indisputable that a reasonably diligent person [in Mr. Cowgill's position] would have attained knowledge of his injury and the cause thereof by November 30, 1979." 780 F.2d at 329. Accordingly, summary judgment was granted for the defendants.
A first timely appeal followed (Cowgill I ). This court first affirmed the district court's conclusion that Pennsylvania law governed the limitations issues. Turning to those issues, we accepted "as true Mr. Cowgill's assertions in his December 1982 deposition that ... no one informed him of his asbestosis until November 1981." 780 F.2d at 329. We further noted that Mrs. Cowgill did "not deny that, as of that date, decedent was aware of his asbestos-related injury." Id. at 326. We found conflicting evidence, however, on whether a reasonably diligent individual should have learned of his asbestos-related injury and its cause more than two years before the filing of the complaint. Id. at 330-1. We therefore remanded the case with explicit instructions regarding the issue to be determined in connection with defendant's limitations defense:
We conclude that issues of material fact remain in dispute and that, on this record, viewed in the light most favorable to appellant, it cannot be said as a matter of law that decedent should have known of his asbestos-related injury more than two years prior to the filing of appellant's suit. The grant of summary judgment for defendants must therefore be vacated and the matter remanded in order that a jury may determine when Mr. Cowgill knew or reasonably should have known of his injury and its cause.
Thus from the filing of the complaint through the first appeal, Mrs. Cowgill acknowledged that her husband had an asbestos-related injury more than two years prior to the institution of suit but insisted that he neither learned nor should have learned of it before November of 1981. As a result, her legal position with respect to limitations was that her cause of action accrued in November of 1981. At no time did she suggest that no injury occurred until a later date or that her cause of action did not accrue until a later date.
On remand, the district court severed the limitations issue for a separate jury trial. During the pre-trial proceedings on that issue, Mrs. Cowgill asserted an alternative theory for the first time. She advised the court that she intended to proceed on the theory that the pleural thickening could not be attributed to asbestos exposure and that the first time Mr. Cowgill knew he had an asbestos-related injury was when he was diagnosed as having cancer in March of 1983. App. at 62-63. Mrs. Cowgill proposed to call several witnesses in support of this contention including Dr. Barnshaw and Dr. Weiss, a medical expert engaged by Mobil to study Mr. Cowgill's file and x-rays. 1 The trial judge excluded the testimony of these witnesses, however, concluding that the issue at the limitations trial should be limited to the issue remanded to the district court by this Court.
A seven-day trial followed at which Mrs. Cowgill was limited to the introduction of evidence tending to show that her husband, despite the exercise of reasonable diligence, knew nothing of his pleural thickening until November 20, 1981. Mrs. Cowgill failed to persuade the jury on this issue. In response to a special interrogatory, the jury determined that...
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