Jeter v. Owens-Corning Fiberglas Corp

• Decision Date: 27 July 1998
• Docket Number: OWENS-CORNING
• Citation: 716 A.2d 633
• Parties: Prod.Liab.Rep. (CCH) P 15,425 Jesse JETER, Appellant, v.FIBERGLAS CORP., et al., Appellees. Theodore LOMAX and Lucy Lomax, h/w, Appellants, v.FIBERGLAS CORP., et al., Appellees. Frederick J. OPDENAKER, Appellant, v.FIBERGLAS CORP., et al., Appellees. Edmund J. GIORDANO and Jean Giordano, Appellants, v.FIBERGLAS CORP., et al., Appellees. Brooks CROPPER and Marion Cropper, h/w, Appellants, v.FIBERGLAS CORP., et al., Appellees.
• Court: Pennsylvania Superior Court

Page 633

716 A.2d 633

Prod.Liab.Rep. (CCH) P 15,425

Jesse JETER, Appellant, v. OWENS-CORNING FIBERGLAS CORP., et al., Appellees.

Theodore LOMAX and Lucy Lomax, h/w, Appellants, v. OWENS-CORNING FIBERGLAS CORP., et al., Appellees.

Frederick J. OPDENAKER, Appellant, v. OWENS-CORNING FIBERGLAS CORP., et al., Appellees.

Edmund J. GIORDANO and Jean Giordano, Appellants, v. OWENS-CORNING FIBERGLAS CORP., et al., Appellees.

Brooks CROPPER and Marion Cropper, h/w, Appellants, v. OWENS-CORNING FIBERGLAS CORP., et al., Appellees.

Superior Court of Pennsylvania.

Submitted March 25, 1998.

Filed July 27, 1998.

Richard P. Hackman, Philadelphia, for appellants.

Norman I. Haase, Media, for Pars Mfg. Co., etc., appellees.

Leslie T. Bradley and Bruce Haines, Philadelphia, for UniRoyal, Inc., etc., appellees.

Christopher H. Jones and Tracy M. McDevitt, Philadelphia, for Harrison Walker Refractories, etc., appellees.

Before SCHILLER, J., and CERCONE and CIRILLO, President Judges Emeritus.

SCHILLER, Judge.

Appellants, Jesse Jeter, Theodore and Lucie Lomax, Frederick Opdenaker, Edmund and Jean Giordano, and Brooks and Marian Cropper, appeal from the order entered in the Court of Common Pleas of Philadelphia County denying their post-trial motions for judgment n.o.v. and/or a new trial, and entering judgment in this case in favor of appellees, Owens Corning Fiberglass Corp., and others. We reverse and remand for a new trial.

FACTS:

Appellants brought an action for damages against appellees for injuries caused by exposure to asbestos (i.e., asbestos-related lung disease). The cases were consolidated with several others and tried before a jury; the jury trial was bifurcated so that the jury first heard evidence concerning causation and damages before being presented with the question of liability. During its instructions to the jury, the trial court stated that in order to show causation, a plaintiff must prove by a preponderance of the evidence that his exposure to asbestos constituted a "substantial contributing factor" to the development of an asbestos-related malady. After the jury had deliberated for some time, it requested clarification of the term "substantial contributing factor." In its written request, the jury highlighted the term "substantial" by use of quotation marks. In response to this request, the court decided to give the jury the Webster's Dictionary definition for "substantial," which stated: "considerable in quantity; significantly large." Appellants objected, claiming that the definition went beyond what is provided by Pennsylvania law. The court denied appellants' objection, and instructed the jury using the dictionary definition. The jury ultimately returned verdicts in favor of appellees in all five cases. Appellants' post-trial motions were denied, and this appeal followed.

DISCUSSION:

Appellants now raise one issue for our consideration: whether the trial court erred in charging the jury as to the meaning of "substantial contributing factor?"

When reviewing claims that the trial court erred in instructing the jury:

our scope of review is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. Williams v. Philadelphia Transportation Company, 415 Pa. 370, 384, 203 A.2d 665, 667 (1964). Error in a charge is sufficient ground for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Gilder [Glider] v. Com. Dept. of Hwys., 435 Pa. 140, 151-52, 255 A.2d 542, 547 (1969). A charge will be found adequate unless "the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said." Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). A reviewing court will not grant a new trial on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental. Sweeney [Sweeny] v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 293 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 356, 140 A.2d 802, 805 (1958). In reviewing a trial court's charge to the jury, we must not take the challenged words or passage out of context of the whole of the charge, but must look to the charge in its entirety. McCay v. Philadelphia Electric Company, 447 Pa. 490, 499, 291 A.2d 759, 763 (1972).

Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995). A trial judge has wide latitude in his/her choice of language when charging the jury, provided that the judge fully and adequately conveys the applicable law. Wagner v. Anzon, 453 Pa.Super. 619, 632-34, 684 A.2d 570, 577 (1996), alloc. denied, 549 Pa. 704, 700 A.2d 443 (1997).

In this case, the trial court first instructed the jury about "substantial contributing factor" as follows In order for the plaintiff to recover in this case, the defendant's product must have been a substantial factor in bringing about the accident. This is what the law recognizes as legal cause. A substantial factor is an actual, real factor, although the result may be unusual or unexpected, but it is not an imaginary or fanciful factor or a factor having no connection or only an insignificant connection with the accident.

The trial court's initial instruction regarding causation properly explained to the jury that the appellants were required to show that they had been injured by asbestos exposure and that such exposure was a substantial contributing factor to their injuries. See Rafter v. Raymark Industries, Inc., 429 Pa.Super. 360, 370-72, 632 A.2d 897, 902 (1993). We note that this instruction tracked the language of the Standard Suggested Jury Instructions, but we wish to emphasize that the fact that this instruction was taken from those standard suggested instructions is not dispositive of whether it was correct; for, as recently reiterated by the Supreme Court, "this court has never adopted the Pennsylvania Suggested Standard Jury Instructions, which exist only as a reference material available to assist the trial judge and trial counsel in preparing a proper charge." Commonwealth v. Smith, 548 Pa. 65, 80 n. 11, 694 A.2d 1086, 1094 n. 11 (1997).

During deliberations, the jurors reached an impasse and they sought further instruction. The following exchange then occurred between the trial court and the jury foreperson:

THE COURT: Now, we need a clarification on the term substantial, you have that in quotes, factor. Is it the meaning of the word that you are confused about? Who is the foreperson?

THE FOREPERSON: I am. I guess so, yes, the meaning. The meaning of how it pertains to this case.

THE COURT: Well, I looked in the dictionary, in Webster's Dictionary, and I don't know if this will help you. It says substantial: Considerable in quantity, significantly large. Does that help you?

THE FOREPERSON: Yes.

N.T. June 14, 1996, pp. 2-3. ¹ As noted above, the jury ultimately returned a verdict for the appellees in all five cases at issue.

On this appeal, appellants do not challenge the court's initial instruction to this jury, merely the reinstruction. In order to obtain a new trial based on the trial court's treatment of a jury's question, the moving party must demonstrate in what way the trial error caused an incorrect result. Nebel v. Mauk, 434 Pa. 315, 253 A.2d 249 (1969). Appellants argue that the trial error resulted in the jury applying a higher, more stringent standard to their cases, and consequently denied them their right to have the jury consider their cases under the correct legal standard. We are compelled to agree.

The "substantial factor" test for determining proximate cause was incorporated into the Restatement (Second) of Torts, § 431 (1965), which in turn has been adopted in Pennsylvania. ² See Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). In Ford, the Pennsylvania Supreme Court cited with approval the comments to § 431 of the Restatement which defined "substantial factor" as "conduct [that] has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense ..." Restatement, supra, at § 431, comment a. See Ford, supra, at 595, 379 A.2d at 114. Nowhere in that definition is there a quantification of causation such as was implied by the trial court when it instructed the jury that the defendants action must have been "considerable" or "significantly large."

Under the law of Pennsylvania, a cause can be found to be substantial so long as it is significant or recognizable; it need not be quantified as considerable or large. These latter terms imply a percentage threshold that a plaintiff must surmount before a jury will be permitted to rule in his favor; however, our courts have never required such an approach. In fact, defendants have been found to have been negligent, and their negligence to be a substantial factor in the plaintiff's harm, even though their negligence was relatively minor vis-a-vis other defendants, or the plaintiff. See Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994) (defendant was 5% responsible for harm); Butterfield v. Giuntoli, 448 Pa.Super. 1, 670 A.2d 646 (1995), alloc. denied, 546 Pa. 635, 683 A.2d 875 (1996) (2% and 3% liability); Boring v. LaMarca, 435 Pa.Super. 487, 646 A.2d 1199, alloc. denied, 539 Pa. 673, 652 A.2d 1319 (1994) (4% and 10% liability). ³ In essence, as recognized in the cases, "substantial" in the "substantial factor" test means "significant." Accord Wagner, supra at 632-34, 684 A.2d at 577 (trial court properly instructed jury that defendant could be liable if its action was not the sole cause of the plaintiffs' injuries, but not if defendant's negligent act was an insignificant factor of those injuries). In Ford, supra, the Supreme Court stated, "[u]nder the Restatement approach the issue is whether the defendant's conduct was, on the one hand, a 'substantial factor' or a 'substantial cause' or, on the other...