Hawaii Federal Asbestos Cases, In re

• Decision Date: 31 March 1992
• Docket Number: 89-16599 and 89-16637,89-15315,89-15319,Nos. 89-15313,s. 89-15313
• Citation: 960 F.2d 806
• Parties: , Prod.Liab.Rep. (CCH) P 13,152 In re HAWAII FEDERAL ASBESTOS CASES. (Four Cases) David K. KAIU; Lillian M. Kaiu, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as Raybestos-Manhattan, Inc., et al., Defendants, and Fibreboard Corporation, formerly known as Fibreboard Paper Products Corporation, a Delaware corporation, Defendant-Appellant. Antonia Beatrix SAWYER, individually and as Special Administratrix of the Estate of Stephen Charles Sawyer, deceased and as Guardian Ad Litem for Andrew John Sawyer, Corrina Antonia Sawyer, and Margaret Ann Sawyer, all minor children, Plaintiff-Appellee, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as Raybestos-Manhattan, Inc., et al., Defendants, and Fibreboard Corporation, formerly known as Fibreboard Paper Products Corporation, a Delaware corporation, Defendant-Appellant. Toledo MONDEREN; Maria L. Monderen, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as Raybestos-Manhattan, Inc., et al., and Fibreboard Corporation, formerly known as Fibreboard Paper Products Corporation, a Delaware corporation, Defendant-Appellant. Ted MINA, Personal Representative for the Estate of Mariano Gamurot, deceased; Domingo Del Rosario; Alice C. Digos, Plaintiffs-Appellees, v. FIBREBOARD CORPORATION, formerly known as Fibreboard Paper Products Corporation; a Delaware corporation, Defendant-Appellant, and Raymark Industries, Inc., a corporation, formerly known as Raybestos-Manhattan, Inc., et al., Defendant. Ted MINA, Personal Representative for the Estate of Mariano Gamurot, deceased; Domingo Del Rosario; Alice C. Digos, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as Raybestos-Manhattan, Inc., et al., Defendant, and Owens-Illinois, Inc., et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 806

960 F.2d 806

60 USLW 2668, Prod.Liab.Rep. (CCH) P 13,152

In re HAWAII FEDERAL ASBESTOS CASES. (Four Cases)

David K. KAIU; Lillian M. Kaiu, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as

Raybestos-Manhattan, Inc., et al., Defendants,

and

Fibreboard Corporation, formerly known as Fibreboard Paper

Products Corporation, a Delaware corporation,

Defendant-Appellant.

Antonia Beatrix SAWYER, individually and as Special

Administratrix of the Estate of Stephen Charles Sawyer, deceased and as Guardian Ad Litem for Andrew John Sawyer, Corrina Antonia Sawyer, and Margaret Ann Sawyer, all minor children, Plaintiff-Appellee, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as

Raybestos-Manhattan, Inc., et al., Defendants,

and

Fibreboard Corporation, formerly known as Fibreboard Paper

Products Corporation, a Delaware corporation,

Defendant-Appellant.

Toledo MONDEREN; Maria L. Monderen, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as

Raybestos-Manhattan, Inc., et al.,

and

Fibreboard Corporation, formerly known as Fibreboard Paper

Products Corporation, a Delaware corporation,

Defendant-Appellant.

Ted MINA, Personal Representative for the Estate of Mariano

Gamurot, deceased; Domingo Del Rosario; Alice C.

Digos, Plaintiffs-Appellees, v. FIBREBOARD CORPORATION, formerly known as Fibreboard Paper

Products Corporation; a Delaware corporation,

Defendant-Appellant,

and

Raymark Industries, Inc., a corporation, formerly known as

Raybestos-Manhattan, Inc., et al., Defendant.

Ted MINA, Personal Representative for the Estate of Mariano

Gamurot, deceased; Domingo Del Rosario; Alice C.

Digos, Plaintiffs-Appellees, v. RAYMARK INDUSTRIES, INC., a corporation, formerly known as

Raybestos-Manhattan, Inc., et al., Defendant,

and

Owens-Illinois, Inc., et al., Defendants-Appellants.

Nos. 89-15313, 89-15315, 89-15319, 89-16599 and 89-16637.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 9, 1991.

Decided March 31, 1992.

George A. Cumming, Jr., Brobeck, Phleger & Harrison, San Francisco, Cal., Jerold T. Matayoshi, Greeley, Walker & Kowen, Honolulu, Hawaii, for defendants-appellants.

L. Richard DeRobertis, Gary O. Galiher, Galiher DeRobertis, Law Corp., Honolulu, Hawaii, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Hawaii.

Before: SCHROEDER, FLETCHER and FERGUSON, Circuit Judges.

FLETCHER, Circuit Judge:

These consolidated appeals arise from judgments based on jury verdicts entered in the plaintiffs' favor in four of the hundreds of asbestos product liability actions pending in the district court in coordinated proceedings. The cases now on appeal were brought by or on behalf of individuals who were exposed to asbestos dust while serving in the United States Navy, and who suffered asbestosis or cancer as a result. Plaintiff Sawyer's decedent was a sailor aboard the cruiser Topeka and other warships. Plaintiffs Kaiu and Monderen, and the Mina plaintiffs' decedent, worked in various Naval shipyards including Pearl Harbor. The defendants are a number of companies who manufactured and supplied asbestos products to the Navy. Not all of the defendants appeal.

The district court consolidated fourteen asbestosis cases, including the Sawyer, Kaiu and Monderen actions, for trial before a single jury. It then tried a group of cancer cases, including the Mina action, before another jury. All of the cases were tried on theories of strict liability.

The jury awarded varying amounts of damages to the Sawyer, Kaiu, Monderen, and Mina plaintiffs. After reducing the awards to account for amounts received in settlement, the district court entered final judgments imposing joint and several liability on the remaining non-settling defendants in each case.

Appellant Fibreboard Corporation, a supplier of insulation products containing asbestos to the Navy both during and after World War II, was a non-settling defendant in all four actions. It appeals from the judgments in each. The issues it appeals are for the most part common to the four cases. Fibreboard challenges the district court's decision to strike the military contractor defense raised as a barrier to liability; the court's refusal to instruct the jury that it should consider whether the acts and omissions of the Navy constituted a supervening cause of the plaintiffs' injuries; the district court's refusal to admit "state-of-the-art" evidence concerning what it knew or should have known regarding the dangers of asbestos at the time the plaintiffs suffered their injuries; and the imposition of joint and several liability for the damages awarded to the plaintiffs. In addition, Fibreboard contends that the plaintiffs in the Sawyer and Mina actions did not adduce sufficient evidence of their decedents' exposure to Fibreboard's products and argues that the district court should, as a result, have granted its motions for a directed verdict or a judgment notwithstanding the verdict in those cases. In Mina, it also asserts that the district court lacked subject matter jurisdiction.

Appellant Owens-Illinois, another supplier of asbestos insulation to the Navy, was granted summary judgment in the Sawyer case and has settled its appeals in the Kaiu and Monderen actions. Thus, it appeals only the judgment in Mina, joining in Fibreboard's challenges with respect to the military contractor defense, the introduction of state-of-the-art evidence, and the failure to give supervening cause instructions. Owens-Illinois also contends that the district court erred by instructing the Mina jury, at Fibreboard's request, to include non-party manufacturers and suppliers of asbestos along with party defendants in its apportionment of liability and by subsequently entering a judgment holding Owens-Illinois jointly and severally liable for the non-parties' share of damages.

We have jurisdiction over these consolidated appeals pursuant to 28 U.S.C. § 1291 (1988) and affirm the rulings of the district court.

I.

As a preliminary matter, we must address Fibreboard's contention that the district court did not have subject-matter jurisdiction over the Mina action. Jurisdiction in all four suits rested on diversity of citizenship. Fibreboard notes, however, that several of the Mina plaintiffs reside in California, and argues that since its principal place of business is also in California, complete diversity is lacking.

This argument, raised for the first time on appeal, is frivolous. Fibreboard, in the interrogatory responses it filed below, stated that its principal place of business was Portland, Oregon. In 1988, after the Mina plaintiffs had filed their complaint, Fibreboard apparently changed its principal place of business to California. It is well- settled that the existence of complete diversity is assessed at the time of the filing of a complaint and that subsequent changes in the citizenship of an existing party do not affect the determination of jurisdiction. Smith v. Sperling, 354 U.S. 91, 93 n. 1, 77 S.Ct. 1112, 1113 n. 1, 1 L.Ed.2d 1205 (1957); Mann v. City of Tucson, 782 F.2d 790, 794 (9th Cir.1986). Since complete diversity obtained at the time the Mina plaintiffs filed their complaint, the district court properly exercised jurisdiction over their action.

II.

In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the Supreme Court outlined the contours of the military contractor defense. Under certain conditions, this defense, which is rooted in the federal common law, immunizes contractors who supply military equipment to the Government from the duties imposed by state tort law. Such displacement of ordinary tort liability "occur[s] only where ... a 'significant conflict' exists between an identifiable 'federal policy or interest and the [operation] of state law....' " Boyle at 507, 108 S.Ct. at 2516 (quoting Wallis v. Pan American Petroleum Corp., 384 U.S. 63, 69, 86 S.Ct. 1301, 1304, 16 L.Ed.2d 369 (1966)). Thus, "[l]iability for design defects in military equipment cannot be imposed [on military contractors], pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Boyle, 487 U.S. at 512, 108 S.Ct. at 2518.

The Court justified the imposition of the military contractor defense as a barrier to state tort actions on the grounds that "the selection of the appropriate design for military equipment to be used by our Armed Forces," Boyle at 511, 108 S.Ct. at 2518, is a discretionary function for which the United States cannot be sued directly under the Federal Tort Claims Act. See 28 U.S.C. § 2680(a) (1988). "[This process of selection] often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness." Boyle at 511, 108 S.Ct. at 2518. "[P]ermitting 'second-guessing' of these judgments ... through state tort suits against contractors would," the Court reasoned, "produce the same effect sought to be avoided by the [§ 2680(a) ] exemption. The financial burden of judgments against the contractors would ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability for the Government-ordered designs." Boyle at 511-512, 108 S.Ct. at 2518.

The Court thus held that the action before it was barred by federal law. The father of a Marine pilot who had drowned when he was unable to open the escape hatch of his military helicopter underwater sued for the loss of his son. The...