Dorse v. Armstrong World Industries, Inc., 85-5334

• Decision Date: 09 September 1986
• Docket Number: No. 85-5334,85-5334
• Citation: 798 F.2d 1372
• Parties: Prod.Liab.Rep.(CCH)P 11,112 Josephine DORSE, as Personal Representative of the Estate of Alfred Dorse, et al., Plaintiffs-Appellees, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, Eagle-Picher Industries, Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1372

798 F.2d 1372

Prod.Liab.Rep.(CCH)P 11,112

Josephine DORSE, as Personal Representative of the Estate of Alfred Dorse, et al., Plaintiffs-Appellees, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, Eagle-Picher Industries, Inc., Defendant-Appellant.

No. 85-5334.

United States Court of Appeals, Eleventh Circuit.

Sept. 9, 1986.

Susan J. Cole, Coral Gables, Fla., Joe G. Hollingsworth, Washington, D.C., for defendant-appellant.

Louis S. Robles, Miami, Fla., for Alfred Dorse.

Jane N. Saginaw, Charles S. Siegel, Dallas, Tex., for Josephine Dorse.

Appeal from the United States District Court for the Southern District of Florida.

Before HILL, Circuit Judge, HENDERSON ^* and BROWN ^**, Senior Circuit Judges.

HILL, Circuit Judge:

This is an appeal from a final judgment entered in favor of plaintiff-appellee in a wrongful death/survival statute action predicated on various products liability theories. The suit alleged that defendant-appellant (among others) was liable to plaintiff, in her own right and on her decedent's behalf, for manufacturing and selling asbestos-containing products to which plaintiff's decedent was exposed. We have determined that this case presents a controlling question of law which should be certified to the Florida Supreme Court.

FACTS

Plaintiff and her decedent filed suit in federal district court in 1982 against ten corporations, including Eagle-Picher, that are alleged to have manufactured or distributed asbestos-containing insulation products to which the decedent was exposed in the course of his employment as a coppersmith constructing naval vessels in Brooklyn, New York. That exposure allegedly caused the decedent to contract certain asbestos-related diseases. Plaintiff's amended complaint (filed after decedent died during the pendency of this litigation) seeks recovery under Florida's wrongful death and survival statutes for injuries she suffered personally and as representative of decedent's estate. Plaintiff's cause of action is predicated on products liability theories sounding in negligence, strict liability (including failure to warn) and breach of implied warranty.

In answer to plaintiff's claims, Eagle-Picher asserted the "government specification defense," an affirmative defense premised on the apparently undisputed allegation Eagle-Picher filed a motion for summary judgment on the grounds that it had satisfied each element of the government specification defense. Following a hearing, that motion was denied on the grounds that the Florida courts have not yet "explicitly recogniz[ed] and appl[ied] the government specification defense" in strict liability cases. The court further noted that, notwithstanding the absence of Florida authority for Eagle-Picher's position, there existed genuine issues of material fact that rendered the entry of summary judgment inappropriate even if the defense could be asserted. ² The district court denied Eagle-Picher's motion for reconsideration of its decision and granted plaintiff's motion to strike the government specification defense from Eagle-Picher's answer, stating that "there are no Florida cases which have explicitly recognized or applied the government specification defense," and that Eagle-Picher had not cited "persuasive authority" for the proposition that the Florida courts would "likely adopt" the defense.

                that Eagle-Picher manufactured and sold the asbestos-containing thermal insulation cement to which plaintiff's decedent was exposed to the United States Navy and the New York Naval Shipyard pursuant to federal government contracts and in strict compliance with mandatory government contract specifications. 1   Eagle-Picher further asserted that the government's knowledge of the hazards of exposure to asbestos-containing insulation products was equal to or greater than Eagle-Picher's knowledge of those hazards.  Plaintiff denies this assertion and claims further that Eagle-Picher manufactured asbestos-containing products like those at issue in this case prior to the promulgation of the government specifications to which it refers, and that Eagle-Picher participated substantially in the drafting of those specifications
                

The parties subsequently filed a "Stipulation for Judgment" requesting that there be incorporated into that judgment (1) final judgment in favor of plaintiff; (2) a determination that the government specification defense is not available under Florida law; and (3) the previous order striking the defense. The district court approved the stipulation and entered an Order Directing Entry of Final Judgment. This appeal followed.

DISCUSSION

This case is greatly complicated by the awkward procedural posture in which it has reached this court. Appellant claims the district court erred in striking the government specification defense. The district court's determination that the government specification defense would not be available to appellant at trial undoubtedly influenced the decision of the parties to agree to settle this case as they have in the district court. A threshold question we must address, however, is the effect on our ability to review this case of the fact that the parties consented to entry of the judgment appellant seeks to set aside. ³

Where the parties have agreed to entry of an order or judgment without any reservation relevant to the issue sought to be appealed, one party may not later seek to upset the judgment, unless lack of "actual consent" or a failure of subject matter jurisdiction is alleged. Swift & Co. v. United States, 276 U.S. 311, 314, 48 S.Ct. 311, 72 L.Ed. 587 (1928). See also Haitian Refugee Center v. Civiletti, 614 F.2d 92 (5th Cir.1980) (party may not appeal from an injunction to which it agreed without reservation). One binding Fifth Circuit case, Amstar Corp. v. Southern Pacific Transport Co., 607 F.2d 1100 (5th Cir.1979) (per curiam), cert. denied, 449 U.S. 924, 101 S.Ct. 327, 66 L.Ed.2d 153 (1980), has held that appellate review is unavailable even if the consent judgment includes an express recognition of the intent of one of the parties to appeal the issue sought to be appealed. Justice Blackmun, dissenting from the denial of certiorari in Amstar, has suggested that this case was wrongly decided, as it "ignores the parties' intent in executing a consent to a judgment and in their subsequent actions thereto." 449 U.S. at 924, 101 S.Ct. at 327. In Justice Blackmun's view, "petitioner [was] entitled to a ruling on the merits of its appeal to the Court of Appeals, and [was] not to be foreclosed by a strict concept of consent and acceptance in the face of facts that the asserted consent was specifically limited and that petitioner consistently and persistently disclaimed full settlement of the lawsuit." 449 U.S. at 927, 101 S.Ct. at 329. Justice Blackmun appears to consider those facts sufficient to raise "a claim of lack of actual consent." 449 U.S. at 926, 101 S.Ct. at 328 (quoting Swift, 276 U.S. at 314, 48 S.Ct. at 311). See also C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3902, at supp. p. 214 n. 26 (1985 Supp.).

Justice Blackmun's view finds support by analogy in the context of appeals from dismissals that were voluntarily sought for the purpose of obtaining appellate review of otherwise interlocutory orders. In United States v. Procter & Gamble Co., 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958), the government had filed a civil antitrust suit against Procter & Gamble, who responded by seeking discovery of the transcript of a recently completed grand jury investigation into the same or similar activity. The district court ordered the government to turn over the transcript within thirty days. The government, adamant in its refusal to obey the court's discovery orders, filed a motion requesting that the court's orders be amended to provide that, if production were not made, the court would dismiss the complaint. Alternatively, the government moved for a stay pending the filing of an appeal and an application for extraordinary writ. The motion was not opposed. The court chose the first alternative, and the complaint was dismissed. Procter & Gamble then urged on appeal that the government could not sue out a writ of error, having voluntarily dismissed its complaint. The Supreme Court found the longstanding rule that "a plaintiff who has voluntarily dismissed his complaint may not sue out a writ of error" inapplicable, reasoning as follows:

The Government has at all times opposed the production orders. It might of course have tested their validity in other ways, for example, by the route of civil contempt. Yet it is understandable why a more conventional way of getting review of the adverse ruling might be sought and any unseemly conflict with the District Court avoided. When the Government proposed dismissal for failure to obey, it had lost on the merits and was only seeking an expeditious review. This case is therefore like Thomsen v. Cayser, 243 U.S. 66, 37 S.Ct. 353, 61 L.Ed. 597, where the losing party got the lower court to dismiss the complaint rather than remand for a jury trial, so that it could get review in this Court. The court, in denying the motion to dismiss, said

"The plaintiffs did not consent to a judgment against them, but only that, if there was to be such a judgment, it should be final in form instead of interlocutory, so that they might come to this court without further delay." Id. 243 U.S. at page 83, 37 S.Ct. at page 358.

United States v. Procter & Gamble Co., 356 U.S. at 680-81, 78 S.Ct. at 985-86.

Amstar also appears to be in conflict with Greenhouse v. Greco, 544 F.2d 1302 (5th Cir.1977), which was decided nearly three years before Amstar but is not cited therein. In Greenhouse, plaintiffs from more than one parish within a single Roman Catholic diocese in Louisiana filed a lawsuit alleging unconstitutional racial segregation and discrimination in the parochial schools within the diocese....