Estate of Hicks v. Dana Companies, LLC

Decision Date18 November 2009
Docket NumberNo. 3089 EDA 2006.,No. 3088 EDA 2006.,3088 EDA 2006.,3089 EDA 2006.
PartiesESTATE OF Louis A. HICKS, Deceased, Appellee v. DANA COMPANIES, LLC f/k/a Dana Corporation, et al. Appeal of: Dana Companies, LLC f/k/a Dana Corporation, Appellant. Estate of Louis A. Hicks, Deceased, Appellee v. Dana Companies, LLC f/k/a Dana Corporation, et al. Appeal of: John Crane, Inc., f/k/a Crane Packing, Appellant.
CourtPennsylvania Superior Court
2009 PA Super 220

BEFORE: FORD ELLIOTT, P.J., STEVENS, ORIE MELVIN, LALLY-GREEN*, KLEIN, BOWES, PANELLA, DONOHUE, and SHOGAN, JJ.

OPINION BY ORIE MELVIN, J.:

¶ 1 This is a consolidated appeal from the judgment entered against Appellants, Dana Companies, LLC f/k/a Dana Corporation (Dana) and John Crane, Inc., f/k/a Crane Packing (Crane), in this products liability action initiated by Appellee, the Estate of Louis A. Hicks, for his contracting malignant mesothelioma from alleged occupational exposure to the Appellants' asbestos-containing products. Following the denial of post-trial motions and entry of judgment, an appeal to this Court was filed in which a panel of this Court affirmed the trial court. We have granted reargument en banc, however, for the principal reason of determining the impact of the Supreme Court's decision in Gregg v. V-J Auto Parts Company, 596 Pa. 274, 943 A.2d 216 (2007). After review, we affirm.

¶ 2 The relevant facts and procedural history of this matter were aptly summarized by the trial court as follows:

The above captioned asbestos case was tried before the Honorable James Murray Lynn and a jury in a reverse bifurcated trial. Plaintiff decedent Louis A. Hicks initiated this lawsuit on December 23, 2002 seeking recovery for personal injuries sustained as a result of his work related exposure to asbestos. From 1948 to 1956, decedent worked as a laborer for Local Union # 135. From 1956 to 1989, decedent worked as a laborer for Heller & Karpowich. During the course of his employment, decedent worked at various commercial industrial facilities throughout the Philadelphia area. Plaintiff decedent was a seventy-five year old man who was diagnosed with malignant mesothelioma in November of 2002. Mr. Hicks died on May 30, 2003; his daughter and administratrix of his estate, Denyse Hicks-Ray, continued this action on his behalf.

* * *

In the first phase, the jury found that Plaintiff decedent was exposed to asbestos that resulted in his development of malignant mesothelioma and awarded his estate $5,000,000.00. In Phase II, the jury found eleven manufacturers of asbestos products liable for causing Plaintiff decedent's malignant mesothelioma, including Defendants, Dana [] and Crane. Each Defendant's pro rata share of the verdict was $454,545.45. On April 12, 2005, [the trial court] granted [Appellee's] Petition for Delay Damages, thereby molding the award [to] reflect[] a total amount of $464,605.65. [Dana and Crane each] timely filed a motion for post-trial relief that was denied. [This appeal followed.]

Trial Court Opinion, 10/24/07, at 1-2; Certified Record (C.R.) at 95.

¶ 3 Upon initial review, a panel of this Court affirmed the judgment entered by the trial court against the Appellants in a Memorandum decision filed on July 22, 2008. Thereafter, on September 26, 2008, that Memorandum was withdrawn in this Court's Per Curiam Order which also granted Appellants' applications for reargument en banc.1

¶ 4 In their substituted brief on reargument en banc, Crane presents the following questions for this Court's review 1. Whether John Crane is entitled to JNOV where [Appellee] failed to present sufficient evidence that gaskets and packings manufactured by John Crane were defective or were the factual cause of [Louis Hicks'] mesothelioma[?]

2. Whether evidence of Environmental Protection Agency ("EPA") and Occupational Safety and Health Administration ("OSHA") regulations should have been admitted, consistent with a Standing Order of the asbestos litigation master docket of the Philadelphia County Court of Common Pleas, to disprove causation, and whether the trial court erred in a series of evidentiary rulings related to this issue[?]

3. Whether the trial court's factual causation jury instructions improperly stated the law, and whether the factual causation instruction given by the trial court misled the attorneys and the jury, where the trial court instructed the jury on causation in a manner different from that contemplated by counsel and the trial court prior to closing argument[?]

Crane's brief, at 7.

¶ 5 Dana's brief on reargument en banc presents the following questions for our review:

1. Whether the causation instructions incorrectly stated the burden of proof?

2. Whether Dana is entitled to JNOV because a correctly instructed jury could not have found that Dana's gaskets caused Mr. Hicks' injuries?

3. Whether § 2 of the Restatement (3d) of Torts applies to this strict products liability action?

4. Assuming that Section 402A of the Restatement (2d) of Torts, rather than Section 2 of the Restatement (3d) of Torts, applies to this strict products liability action, whether the jury should have been instructed that "bystanders" can recover?

5. Whether the trial court erred in excluding evidence that Dana's products were in full compliance with applicable government and medical safety standards?

6. Whether conducting the trial in reverse-bifurcated format unfairly prejudiced Dana?

Dana's brief, at 4.2

In reviewing a motion for [JNOV], the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a [JNOV] should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge's appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury's deliberations.

There are two bases upon which a [JNOV] can be entered: one, the movant is entitled to judgment as a matter of law, and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 93 (Pa.Super.2007), appeal denied, 598 Pa. 768, 956 A.2d 435 (2008), cert. denied, ___ U.S. ___, 129 S.Ct. 1581, 173 L.Ed.2d 675 (2009) (quoting Moure v. Raeuchle, 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992) (citations and quotation marks omitted)).

Similarly, when reviewing the denial of a motion for new trial, we must determine if the trial court committed an abuse of discretion or error of law that controlled the outcome of the case.

Id. (quoting Long v. Mejia, 896 A.2d 596, 599 (Pa.Super.2006) (citations omitted)).

¶ 6 With these standards in mind, we examine Crane's first issue on appeal wherein it argues that it is entitled to JNOV because no two reasonable minds could fail to agree that "the expert testimony on causation and the testimony on frequency, regularity and proximity overwhelmingly favor John Crane." Crane's brief, at 16. Specifically, Crane takes issue with the opinion offered by Appellee's expert, Dr. James C. Giudice, which indicated that each and every exposure to asbestos is significant in the causation of mesothelioma because each and every exposure adds to the asbestos burden. Videotaped Deposition of Dr. Giudice, 6/8/04, at 29; C.R. at Exhibit P-6. Crane argues that the Supreme Court's reference in Gregg, supra, to similar "generalized" opinions being insufficient to establish a jury question should likewise be insufficient to overcome the allegedly unrebutted contrary testimony of Appellants' expert witnesses that there is a de minimis release of respirable asbestos fibers from the Crane products at issue. Dana, in its second issue, advances a similar argument positing that "the Supreme Court [has] rejected the ... `each and every exposure to asbestos' theory ... as insufficient as a matter of law to satisfy Pennsylvania's causation standards." Dana's Brief, at 15.3 We disagree.

¶ 7 To prove causation in fact in § 402A asbestos cases, the plaintiff must prove medical causation, i.e., that exposure to asbestos caused the injury and that it was the defendant's asbestos-containing product which caused the injury. To satisfy this burden a plaintiff must meet the "regularity, frequency and proximity" test as articulated by our Supreme Court in Gregg, supra. In Gregg, our Supreme Court explained for the first time the appropriate application of the "frequency, regularity and proximity" criterion this Court announced in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), appeal denied, 520 Pa. 605, 553 A.2d 968 (1988). In so doing, the Supreme Court adopted the approach utilized by the United States Seventh Circuit Court of Appeals in the case of Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir.1992), explaining that there is no bright-line distinction between direct and circumstantial evidence cases "because this distinction is unrelated to the strength of the evidence and is too difficult to apply, since most cases involve some combination of direct and circumstantial evidence." Gregg, at 290, 943 A.2d at 226 (footnote omitted). More specifically, the Supreme Court opined:

Tragarz explains that these criteria do not establish a...

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