Ingram v. Acands, Inc.
| Decision Date | 21 October 1992 |
| Docket Number | INC,91-35216,Nos. 91-35117,OWENS-ILLINOI,91-35330,91-35331 and 91-35497,s. 91-35117 |
| Citation | 977 F.2d 1332 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,342 Bert E. INGRAM, Plaintiff-Appellee, v. ACANDS, INC.; Fibreboard Corp., Defendants, and Owens-Illinois, Inc., Defendant-Appellant. Beulah M. BECKER, Personal Representative of the Estate of Alfred E. Becker, Plaintiff-Appellee, v., Defendant-Appellant. Beulah M. BECKER, Personal Representative of the Estate of Alfred E. Becker, Plaintiff-Appellant, v., Defendant-Appellee. Bert E. INGRAM, Plaintiff-Appellant, v. ACANDS, INC.; Fibreboard Corp., Defendants, and Owens-Illinois, Inc., Defendant-Appellee. Bert E. INGRAM, Plaintiff-Appellee, v. ACANDS, INC., a Pennsylvania Corporation, et al., Defendant, and Fibreboard Corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert K. Udziela, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, Or., for plaintiffs-appellees-cross-appellants.
Larry C. Lowe, Morgenstein & Jubelirer, San Francisco, Cal., for defendant-appellant-cross-appellee.
Thomas M. Peterson, Brobeck, Phleger & Harrison, San Francisco, Cal., for defendant-appellant-cross-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: GOODWIN, TANG and THOMPSON, Circuit Judges.
Bert E. Ingram, a former insulator who suffered from asbestosis, and Beulah M. Becker, surviving wife of Alfred E. Becker who allegedly died from the effects of asbestosis, sued a number of asbestos manufacturers. Both Ingram and Becker included Owens-Illinois ("O-I") as a defendant in their respective lawsuits. Ingram also sued Fibreboard Corporation. Juries in the two cases 1 returned verdicts in favor of the plaintiffs.
On appeal, O-I challenges evidentiary rulings made by the district court in both cases and contends that substantial evidence does not support the juries' verdicts. It also contends it suffered prejudice in defending against liability in Becker's case when the district court let Becker's claim for punitive damages go to the jury, even though it had granted a directed verdict in favor of O-I on that claim.
Fibreboard challenges the district court's order in Ingram, holding it jointly and severally liable for all compensatory damages.
Ingram and Becker cross-appeal. Ingram argues that the district court erred in submitting to the jury the issue of his comparative fault. Becker makes the same argument as it pertains to her deceased husband. She also contends the district court erred in granting O-I's motion for a directed verdict on the punitive damage claim.
We have jurisdiction over all of the appeals and cross-appeals, because we hold that minute orders entered by the district court when it ruled on post-trial motions in the two cases, as well as subsequent orders entered after the court filed its formal opinions, are all dispositive orders which triggered 30-day appeal periods. Thus, no notice of appeal or notice of cross-appeal was untimely.
We affirm the judgments in both Ingram and Becker, except that in Ingram we vacate the portion of the judgment which imposed joint and several liability against Fibreboard.
Working as an insulator since 1955, Ingram was exposed to a number of products containing asbestos. Among the products to which he was exposed was "Kaylo," an asbestos-containing pipe covering and block manufactured for a time by O-I. Ingram also was a smoker.
In his suit against the asbestos manufacturers and their successors, Ingram alleged personal injuries based on strict liability and negligence. A jury found that Ingram suffered $527,000 in compensatory damages, and that his comparative fault was 45%. It apportioned the defendants' 55% relative fault among them as follows: Celotex Corporation, 7%; Fibreboard Corporation, 53%; O-I, 25%; and Manville Corporation Asbestos Disease Compensation Fund ("Manville"), 15%. 2 The jury also awarded Ingram $200,000 in punitive damages against O-I. The court determined that Fibreboard was jointly and severally liable for the full amount of the judgment, excluding the punitive damage award.
Mrs. Becker's deceased husband worked as a marine machinist at Oregon Shipbuilding in Portland during World War II until 1946. He was exposed to numerous asbestos products, and eventually developed lung cancer and asbestosis.
The jury in Mrs. Becker's case awarded $104,431.92 in economic damages and $32,700 in noneconomic damages. It apportioned 34% of fault to the decedent Becker, 34% to Manville, 24% to Fibreboard Corporation, and 8% to O-I. The jury awarded punitive damages against Fibreboard and O-I in the amounts of $150,000 each, but these awards were set aside because the district court had previously granted Fibreboard's and O-I's motions for a directed verdict on the punitive damage claims.
DISCUSSION
A timely notice of appeal is a jurisdictional requirement which cannot be waived by the parties. Allah v. Superior Court, 871 F.2d 887, 890 n. 1 (9th Cir.1989); Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 753-54 (9th Cir.), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 L.Ed.2d 51 (1986). To be timely, a notice of appeal in a civil case must be filed in the district court "within 30 days after the date of entry of the judgment or order appealed from." Fed.R.App.P. 4(a)(1). However, when a party files a post-trial motion,
the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of [such motion] shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.
A judgment or order is "entered" within the meaning of Rule 4(a) "when it is entered in compliance with Rules 58 and 79(a) of the Federal Rules of Civil Procedure." Fed.R.App.P. 4(a)(7). "Rule 58 requires that every judgment be set forth on a separate document, and Rule 79(a) details the civil docketing procedure to be followed by the district court clerk when entering the judgment." Beaudry, 780 F.2d at 754 (footnotes omitted).
In Ingram, the court entered judgment on the jury's verdict on October 30, 1990. 3 O-I filed post-trial motions on November 14, 1990. In Becker, the court entered judgment on November 1, 1990. O-I filed post-trial motions on November 16, 1990.
In both cases, the district court denied the post-trial motions and issued virtually identical minute orders. In Ingram, the minute order was entered January 14, 1991. It read:
Record of hearing Owens-Illinois motion for new trial, etc (350): Order DENYING; written opinion to follow.
A handwritten notation on the minutes states: "ntfd cnsl." O-I filed its notice of appeal on February 6, 1991. In Becker, the minute order was also entered January 14, 1991. It read:
Record of hearing deft. Owens-Illinois motion for new trial, etc (177): Order DENYING; written opinion to follow.
A handwritten notation on the minutes states: "ntfd." O-I filed its notice of appeal on February 6, 1991.
The district court thereafter filed a written opinion and separate order in Ingram. The order stated:
Defendant's motions for a new trial and judgment notwithstanding the verdict are denied.
IT IS SO ORDERED.
Dated this 12 day of February, 1991.
(signed) Owen M. Panner
This order was entered on February 13, 1991. An identical order was filed in Becker. It was entered on February 12, 1991.
The extent of our jurisdiction over these appeals depends upon when the time to file notices of appeal, and notices of cross-appeal, began to run. This depends upon which orders are dispositive orders for appeal purposes.
If the minute orders entered January 14, 1991 are the only dispositive orders, then the 30-day appeal period began to run in both cases on that date. In Ingram, O-I's and Ingram's appeals would be timely, 4 and Fibreboard's would not be timely. In Becker, both O-I's appeal and Mrs. Becker's cross-appeal would be timely.
If the only dispositive orders are the district court's subsequent orders entered following its written opinions, then the 30-day period for appeal in Becker began to run on February 12, 1991, and in Ingram it began to run on February 13, 1991. In Ingram, Ingram's "cross-appeal" would be a timely appeal, and Fibreboard's "appeal" would be a timely cross-appeal. O-I's notice of appeal in Ingram would be premature, and therefore untimely. 5 In Becker, Mrs. Becker's "cross-appeal" would be a timely appeal.
The district court's initial minute orders denying the post-trial motions in both Ingram and Becker were entered January 14, 1991 on the docket sheets. In both cases, these minute orders were followed by written opinions, which in turn were followed by orders which also were docketed. There is no question that these subsequent docketed orders are dispositive orders that triggered 30-day appeal periods. The more difficult question is whether the previous minute orders entered January 14, 1991 were also dispositive orders that triggered 30-day appeal periods, notwithstanding entry of the subsequent orders.
In three previous cases, we have considered the question what constitutes a dispositive order to trigger the time within which to file a notice of appeal or other motion. See Carter v. Beverly Hills Sav. & Loan Ass'n, 884 F.2d 1186 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3270, 111 L.Ed.2d 780 (1990); Beaudry, 780 F.2d 751; Calhoun v. United States, 647 F.2d 6 (9th Cir.1981), overruled on other grounds, Acosta v. Louisiana Dep't of Health & Human Res., 478 U.S. 251, 106 S.Ct. 2876, 92 L.Ed.2d 192 (1986). 6
In Calhoun,...
To continue reading
Request your trial
-
James v. Bessemer Processing Co., Inc.
...and proximity analysis applies to expert scientific testimony as well as to co-worker testimony of exposure). Cf. Ingram v. ACandS, Inc., 977 F.2d 1332, 1343-44 (9th Cir.1992)(rejecting frequency, regularity and proximity test where Oregon law applied because causation burden under Oregon l......
-
Bonin v. Calderon
...Bankers Trust Co. v. Mallis, 435 U.S. 381, 384, 388, 98 S.Ct. 1117, 1121, 55 L.Ed.2d 357 (1978); see also Ingram v. Acands, Inc., 977 F.2d 1332, 1339 n. 7 (9th Cir.1992); Blazak v. Ricketts, 971 F.2d 1408, 1409 & n. 2 (9th Cir.1992); Teamsters Pension Trust Fund v. H.F. Johnson, Inc., 830 F......
-
Lineaweaver v. Plant Insulation Co.
...shifting of the burden of proof does not have the effect of attenuating the standard of legal cause, as in cases such as Ingram v. Acands, Inc., supra, 977 F.2d 1332 and Lockwood. The question for the jury remains whether exposure to asbestos derived from defendant's product was a substanti......
-
Braune v. Abbott Laboratories
...999 F.2d 1007, 1013 (6th Cir.1993) (synergy between smoking and asbestos in causing plaintiffs' medical problems); Ingram v. Acands, Inc., 977 F.2d 1332, 1342 (9th Cir.1992) (similar); J. Morelli & Orna Harish, Establishing Causation in Contamination Cases, N.Y.L.J., June 12, 1995, at S4 (n......
-
Attacking the Opposing Expert
...was not unduly prejudicial because of its limited scope and its direct relevance to the issues in the case. Case Ingram v. Acands, Inc. , 977 F. 2d 1332 (9th Cir. 1992) was a claim arising out of a death caused by exposure to asbestos. One of the defendants, Owens Illinois, challenged the t......
-
Attacking the Opposing Expert
...(D. Colo. 1993); Great Lakes Dredge & Dock Co. v. Harnischfeger Corp., 734 F. Supp. 334 (N.D. Ill. 1990). CASE Ingram v. Acands, Inc. , 977 F. 2d 1332 (9th Cir. 1992) was a claim arising out of a death caused by exposure to asbestos. One of the defendants, Owens Illinois, challenged the tri......
-
Table of Cases
...§244 Inglewood Redevelopment Agency v. Akillu, 153 Cal. App. 4th 1985, 53 Cal. Rptr. 3d 684 (2007), §514.2 Ingram v. Acands, Inc ., 977 F. 2d 1332 (9th Cir. 1992), §424.6 Int ’ l Bhd. of Teamsters v. United States, 431 U.S. 324, 52 L.Ed.2d 396, 97 S.Ct. 1843 (1977), §614 -J- J.B. Hunt Trans......
-
Attacking the Opposing Expert
...was not unduly prejudicial because of its limited scope and its direct relevance to the issues in the case. Case Ingram v. Acands, Inc. , 977 F. 2d 1332 (9th Cir. 1992) was a claim arising out of a death caused by exposure to asbestos. One of the defendants, Owens Illinois, challenged the t......