Dunn v. HOVIC, 91-3837
| Decision Date | 27 July 1993 |
| Docket Number | No. 91-3837,91-3837 |
| Parties | 37 Fed. R. Evid. Serv. 783, Prod.Liab.Rep.(CCH)P. 13,542 William DUNN; Hess Oil Virgin Islands Corp. v. HOVIC; Amerada Hess Corp.; Keene Corporation v. The LITWIN CORPORATION; Litwin PanAmerican; Borinquen Insulation Co. Owens-Corning Fiberglas Corporation, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Barry S. Simon (argued) and Paul Mogin, Williams & Connolly, Washington, DC, for appellant.
Joel H. Holt (argued), Christiansted, VI and Paul S. Minor, Minor & Guice, Biloxi, MS, for appellee.
Before: SLOVITER, Chief Judge, MANSMANN and WEIS, Circuit Judges.
On April 22, 1992 a panel of this court heard argument on the appeal of Owens-Corning Fiberglas Corporation (OCF) from the judgment of the district court awarding William Dunn $500,000 in compensatory damages for asbestos-related injury and $2 million in punitive damages. The opinion of the panel, affirming the district court's award of compensatory damages and ordering a remittitur of the punitive damages award to $1 million, was filed on September 18, 1992.
Thereafter, OCF filed a petition for rehearing in banc. On October 8, 1992, the court granted the petition and vacated the opinion of the panel. However, the petition was directed only to the punitive damages award and the court subsequently directed counsel to limit their arguments at the rehearing in banc to that issue. Accordingly, the court in banc has amended its October 8, 1992 order to the extent that it vacated the panel opinion in its entirety, and the panel hereby reinstates the portion of its earlier opinion addressing the compensatory damages and evidentiary issues raised by OCF with only minor editorial changes. A separate opinion of the court in banc will be issued limited to the punitive damages award.
In 1987 William Dunn, a former pipe installer at Hess Oil Virgin Islands Corporation (HOVIC), filed this action against OCF as well as other manufacturers of asbestos-containing products, alleging personal injuries caused by exposure to asbestos. Following a trial in which liability and compensatory damages were determined before the issue of punitive damages, the jury awarded Dunn $1.3 million in compensatory damages and $25 million in punitive damages against the sole remaining defendant, OCF, the distributor and later manufacturer of Kaylo, an asbestos-containing pipecovering.
OCF filed post-trial motions pursuant to Federal Rules of Civil Procedure 50(b) and 59 requesting a Judgment Notwithstanding the Verdict or, in the alternative, a new trial. The district court denied the motion for JNOV, but conditioned the denial of the motion for a new trial on Dunn's acceptance of a remittitur of the compensatory award to $500,000 and the punitive award to $2 million. Dunn v. Owens-Corning Fiberglass, 774 F.Supp. 929, 951-52 (D.V.I.1991). Dunn accepted the remittitur, and OCF appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).
In ruling on a motion for JNOV, the district court must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Rotondo v. Keene Corp., 956 F.2d 436, 438 (3d Cir.1992). We apply the same standard on appeal as the district court, id., and will affirm the denial of the motion "unless the record is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief." Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir.1980) (internal quotations omitted), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981).
We review the denial of a motion for a new trial for abuse of discretion, Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 290 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 373, 116 L.Ed.2d 324 (1991), and note that "the district court ought to grant a new trial on the basis that the verdict was against the weight of the evidence only where a miscarriage of justice would result if the verdict were to stand." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1352 (3d Cir.1991). In addition, "we may disturb the district court's determination with respect to a remittitur only for abuse of discretion, and reverse and grant a new trial only if the verdict is so grossly excessive as to shock the judicial conscience." Gumbs v. Pueblo Int'l, Inc., 823 F.2d 768, 771 (3d Cir.1987) (internal quotations omitted).
Rather than focus its appeal on liability, OCF raises numerous issues going to damages. We address in subpart A the compensatory damages issues and in subpart B the evidentiary issues, which implicate both compensatory and punitive damages.
From the evidence presented at trial, the jury could reasonably have concluded the following. In 1950 Dunn went to work as a pipe installer's helper for Dow Chemical in Texas. App. at 846-47. After working in various places in the United States and the Caribbean, Dunn began working at the Hess Oil refinery in St. Croix, Virgin Islands in 1966 as a pipe installer. App. at 859-64. He testified that as a result of his duties, which often required cutting, sawing or pounding of asbestos-containing insulation, he was covered from head to toe in dust from early morning until he left work. App. at 868-69. Dunn identified OCF's Kaylo as the asbestos-containing insulation product he used most. 1 App. at 870.
Beginning in the mid-1980s, Dunn began to experience shortness of breath and weight loss. App. at 878-79, 888. He was diagnosed as suffering from "a lung condition ... caused by asbestos." App. at 879. Prior to that time Dunn enjoyed a variety of athletic activities, including running, swimming, biking, and weight lifting. App. at 876. He claims that because of his lung disease, he can no longer engage in the athletic activities he enjoyed previously. App. at 889. Dunn testified about his great fear of contracting cancer in the future and his depression at seeing long-time friends die of asbestos-related disease. App. at 889-92.
Dunn asked for compensatory damages for present and future pain and suffering, including compensation for his fear of contracting cancer. OCF contends that Dunn did not adduce enough evidence at trial to show that he suffers from compensable injury. In particular, OCF claims that under the American Thoracic Society standards for diagnosing asbestosis, the evidence presented at trial demonstrates that Dunn does not exhibit the conditions necessary for a diagnosis of asbestosis.
Under the Virgin Islands Code, in the absence of local law to the contrary, the Restatements of the law approved by the American Law Institute control. V.I.Code Ann. tit. 1, Sec. 4 (1967); see Berroyer v. Hertz, 672 F.2d 334, 340 (3d Cir.1982). OCF notes that Restatement (Second) of Torts sections 388 and 402A make "harm" an essential element of claims for negligence and strict liability. However, section 7(2) defines "harm" as "the existence of loss or detriment in fact of any kind to a person resulting from any cause." Restatement (Second) of Torts Sec. 7(2) (1965). Comment b explains that Id. cmt. b.
It is undisputed that Dunn has extensive pleural thickening on the exterior of his lungs. See App. at 661-62, 762-63. OCF nevertheless argues that the presence of pleural plaques does not constitute compensable injury, citing Purjet v. Hess Oil Virgin Islands Corp., 22 V.I. 147, 149, 1986 WL 1200 (D.V.I.1986), for the proposition that Dunn must prove "[a]ctual injury or damage" to recover. In that case, plaintiffs, neither of whom suffered from any asbestos-related condition, brought a suit seeking, inter alia, damages for enhanced risk of developing asbestos-related diseases. In granting summary judgment for the defendants, the district court held that under Virgin Islands law, "a tort claim will not lie in the absence of a demonstrable injury [and] mere exposure to asbestos is insufficient to state a cause of action." Id. at 154; see also Schweitzer v. Consolidated Rail Corp., 758 F.2d 936, 942 (3d Cir.) (for purposes of F.E.L.A. claim, "manifest injury [is] a necessary element of an asbestos-related tort action"), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152 (1985).
We need not decide in this case whether the mere presence of pleural plaques constitutes the "harm" necessary to recover damages for tort under the Restatement. We note that more recent cases applying the law of states within this circuit have held that it is. Thus, in Marinari v. Asbestos Corp., 417 Pa.Super. 440, 612 A.2d 1021 (1992), the Pennsylvania Superior Court, sitting in banc, held that "pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action." 2 Id. at 1028.
Two medical experts testified on Dunn's behalf. Dr. David Egilman, who is board certified in internal and occupational medicine with a specialty in occupational lung disease, see App. at 156, stated that Dunn had "the exact injuries that you would expect if someone was injured from breathing in the asbestos." App. at 164. He also stated that he was "certain that [Dunn] has asbestos-related lung disease, both in the lung tissue and around the lung," and concluded that Dunn suffers from asbestosis. App. at 297.
Dunn's other expert witness, Dr. David Kern, also certified in occupational and internal medicine, concurred in this diagnosis, stating that Dunn "definitely did have asbestosis." App. at 666. Both experts testified that when they examined Dunn's lungs they heard rales, a velcro-like sound indicative of asbestosis. Ap...
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