Dunn v. Owens-Corning Fiberglass

• Decision Date: 27 September 1991
• Docket Number: Civ. No. 1987/238.
• Citation: 774 F. Supp. 929
• Parties: William DUNN, Plaintiff, v. OWENS-CORNING FIBERGLASS, Defendant.
• Court: U.S. District Court — Virgin Islands

774 F. Supp. 929

William DUNN, Plaintiff, v. OWENS-CORNING FIBERGLASS, Defendant.

Civ. No. 1987/238.

District Court, Virgin Islands, D. St. Croix.

September 27, 1991.

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Joel Holt, Christiansted, St. Croix, V.I., Paul Minor, Minor & Benton, Biloxi, Miss., for plaintiff.

John M. Fitzpatrick, Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, Va., Michael Dunston, Mary Faith Carpenter, Law Offices of A. Dudley, St. Thomas, V.I., Barry S. Simon, Paul Mogin, Williams & Connolly, Washington, D.C., for defendant.

OPINION

MOTLEY, District Judge, sitting by designation.

FACTS

In 1950, plaintiff, William Dunn, first went to work as a pipe installer's helper for Dow Chemical in Texas. A pipe installer performs the job of fitting insulation over pipes. This often requires cutting, sawing or pounding the insulation which creates dust. During plaintiff's career, this dust often contained asbestos. Plaintiff testified that Owens-Corning's Kaylo was the insulation that he used most frequently while performing these tasks and that the product contained no warning as to the dangers of asbestos. (Tr. v. IV at 128-29). Owens-Corning distributed Kaylo from 1948-1958 and actually bought the Kaylo producing plant in 1958.

In 1966, after working in various locales in the United States and Caribbean, plaintiff began working at the Hess Oil Refinery in St. Croix, Virgin Islands. (Tr. v. IV at 130). There plaintiff received, stored and fitted insulation. He testified that he was covered head to toe in dust from early in the morning until he left work and that the principal insulation product he used was Owens-Corning's Kaylo. (Tr. v. IV at 135-136).

In the mid-1980s, Dunn began experiencing shortness of breath and was diagnosed as suffering from a lung condition caused by asbestosis. (Tr. v. IV at 145). Dunn had been a very athletic person who enjoyed running, swimming, biking and weight lifting (Tr. v. IV at 142) and he claimed that due to his lung disease, he was no longer able to work as an insulator or partake in the above athletic activities. Plaintiff alleged that the Kaylo product which Owens-Corning manufactured was a substantial cause of his lung problems.

The plaintiff, in his original complaint, had sued numerous manufacturers of asbestos. He settled, however, with a number of these defendants and defendants Celotex and Johns-Manville were bankrupt. Thus Owens-Corning was the only remaining defendant at trial. Plaintiff sought damages for present pain and suffering and future pain and suffering. He also asked for punitive damages.

The case was originally before Judge David O'Brien of this Court, but one week into trial the Judge became ill and subsequently died. The trial eventually took place over a two week period in November of 1990. After deliberation, the jury found defendant liable for $1.3 million in compensatory damages. The jury was then given an instruction regarding punitive damages and was once again sent out to deliberate. The jury returned a verdict for $25 million in punitive damages. Thus, in total, the jury awarded Dunn $26.3 million.

JUDGMENT NOTWITHSTANDING THE VERDICT

Defendant, Owens-Corning, has moved this court for a Judgment Notwithstanding the Verdict (JNOV). The standard for a court to determine whether a JNOV should be granted or denied is whether "the record contains the minimum quantum of evidence from which a jury might reasonably afford relief." Keith v. Truck Stops Corp., 909 F.2d 743, 745 (3d Cir.1990) (citations omitted). See also Kinnel v. Mid-Atlantic Mausoleums, Inc., 850 F.2d 958, 961 (3d Cir.1988); Smollett v. Skayting Development Corp., 793 F.2d 547, 548 (3d Cir.1986); Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969). When there is insufficient evidence to support the jury's verdict, a court is required to grant a JNOV. See National Controls Corp. v. National Semiconductor Corp., 833 F.2d 491 (3d Cir.1987). In making such a determination, the court views the evidence in the light most favorable to the non-moving party. Keith, 909 F.2d at 747; Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1178 (3d Cir.1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).

Defendant asks that in the event this court does not direct a JNOV, it grant a new trial. The standard for granting a new trial is lower than the standard for directing a JNOV. "A district court ... may grant a new trial if required to prevent injustice or to correct a verdict that was against the weight of the evidence." American Bearing Co. v. Litton Industries, Inc., 729 F.2d 943, 948 (3d Cir.), cert. denied, 469 U.S. 854, 105 S.Ct. 178, 83 L.Ed.2d 112 (1984). See also Roebuck v. Drexel University, 852 F.2d 715, 736 (3d Cir.1988) (when verdict is contrary to the great weight of the evidence a new trial is necessary). "`The authority to grant a new trial, moreover, is confided almost entirely to the exercise of discretion on the part of the trial court.'" American Bearing, 729 F.2d at 948 (citing Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 36, 101 S.Ct. 188, 190-91, 66 L.Ed.2d 193 (1980) (per curiam)). A trial court, however, must ensure when deciding whether to grant a new trial that it "has not simply substituted its judgment of the facts and the credibility of the witnesses for those of the jury." Shanno v. Magee Industrial Enterprises, Inc., 856 F.2d 562, 567 (3d Cir. 1988) (citing Lind v. Schenley Indus., Inc., 278 F.2d 79, 90 (3d Cir.) (en banc), cert. denied, 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60 (1960)).

Defendant has raised numerous points which it believes warrant a new trial. This court will only address, in this opinion, those points which possess some merit.

SUFFICIENCY OF THE EVIDENCE

Defendant claims that plaintiff failed to produce evidence that the Kaylo product was a substantial contributing factor in plaintiff's injuries. More specifically, defendant claims that plaintiff failed to put forth any expert medical testimony stating that Kaylo was a substantial contributing cause of plaintiff's injury. Defendant relies for this proposition solely upon the case of Burton v. Johns-Manville Corp., 613 F.Supp. 91 (W.D.Pa.1985). Burton, however, does not stand for the proposition that expert medical testimony is necessary to link a specific product to a plaintiff's injury.

In Burton, the plaintiff's doctor, on cross-examination, testified that he was unable to state the extent to which asbestos from plaintiff's work-site contributed to his injury. The doctor did state on direct examination that plaintiff died of an asbestos related disease, that this disease was caused by asbestos from his job-site and elsewhere and that defendant's product caused asbestos dust to be released in the work place. The court firmly ruled that the evidence produced:

was a sufficient basis for the jury to conclude under the instructions of the court on the law as it pertains to legal cause that defendant's defective product was a substantial contributing cause of decedent's disease and death. It was not necessary that plaintiff prove through expert opinion or otherwise that defendant's asbestos dust and fibers independent of other asbestos dust and fiber were a substantial contributing cause.

Id. at 94 (emphasis in original).

The Burton court did not insinuate that medical testimony is necessary to show proximate cause between an injury and defendant's particular product. Indeed, the court specifically held that testimony setting forth exactly how much one defendant's product contributes to the injury is not necessary and indeed may be even impossible. Id. In addition, the court was not attempting to set forth the minimum quantum of evidence necessary to establish proximate cause but was rather examining the evidence presented in that specific case.

Furthermore, and contrary to defendant's argument, in Rocco v. Johns-Manville Corp., 754 F.2d 110, 113 (3d Cir.1985), the Third Circuit upheld the lower court's ruling that sufficient evidence supported the jury's finding that asbestos manufactured by Pittsburgh Corning was a factor causing plaintiff's injury. The Third Circuit stated that "although the evidence was not overwhelming, there was enough for the jury to find that Unibestos, a product manufactured by Pittsburgh Corning, was used at the Shipyards where plaintiff had worked. The evidence consisted of several witnesses who testified that the product was manufactured by Pittsburgh Corning and that the product had been observed at the job sites." Id.

In Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), defendant contended that there was not enough evidence to show proximate cause between the injury and the product. The court found that testimony from co-workers and witnesses as to product identification was sufficient to sustain the verdict. Id. at 1286. See also LaDuca v. Celotex Corp., No. 89-7684 (2d Cir. April 23, 1990) (available on Lexis) (evidence that plaintiff worked with defendant's asbestos product, among others, sufficient to find defendant's product proximate cause of asbestos injury).

Similarly, in Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir.1981), the defendant argued that there was no substantial evidence that plaintiff was exposed to its products and no evidence at all that its products were a producing cause of the disease. Id. at 1184. Yet the Fifth Circuit found that there was sufficient evidence for the verdict because plaintiff demonstrated that Nicolet was a manufacturer of asbestos-containing insulation and co-workers confirmed that plaintiff had worked with the product. Plaintiff also produced medical evidence that an asbestos related disease was the cause of death and that small quantities of asbestos could have produced the disease. Id. at 1185. See also In re New York Asbestos Litigation,...