Johnson v. Celotex Corp., Nos. 341

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MINER and MAHONEY, Circuit Judges, and CARMAN; CARMAN; MAHONEY
Citation899 F.2d 1281
Parties, Prod.Liab.Rep.(CCH)P 12,425 John E. JOHNSON and h/w Ann Marie Johnson, Plaintiffs-Appellees, v. The CELOTEX CORPORATION, Owens-Illinois, Inc., Defendants-Appellants. ockets 89-7484, 89-7542.
Decision Date20 March 1990
Docket NumberNos. 341,342,D

Page 1281

899 F.2d 1281
16 Fed.R.Serv.3d 230, Prod.Liab.Rep.(CCH)P 12,425
John E. JOHNSON and h/w Ann Marie Johnson, Plaintiffs-Appellees,
v.
The CELOTEX CORPORATION, Owens-Illinois, Inc., Defendants-Appellants.
Nos. 341, 342, Dockets 89-7484, 89-7542.
United States Court of Appeals,
Second Circuit.
Argued Nov. 2, 1989.
Decided March 20, 1990.

Page 1282

Steven J. Phillips, New York City (Levy Phillips & Konigsberg, Diane Paolicelli, New York City, of counsel), for plaintiffs-appellees.

Andrew T. Berry, Newark, N.J. (McCarter & English, Newark, N.J., of counsel), for defendant-appellant, Celotex Corp.

Frank H. Santoro, Hartford, Conn. (Danaher, Tedford, Lagnese & Neal, P.C., Joyce A. Lagnese, Paul J. Narducci, and Wendy W. Wanchak, Hartford, Conn., of counsel), for defendant-appellant, Owens-Illinois, Inc.

Before MINER and MAHONEY, Circuit Judges, and CARMAN, Judge. *

CARMAN, Judge:

Defendant-appellant The Celotex Corporation (Celotex or appellant) appeals from a judgment entered in the Southern District of New York after a jury trial before Charles P. Sifton, J., regarding Joint Eastern and Southern Districts Asbestos Litigation, awarding compensatory and punitive damages and damages for loss of consortium in an asbestos products liability personal injury case. Celotex appeals from orders denying its motion for judgment notwithstanding the verdict, or in the alternative, a new trial and for a mistrial. Defendant-appellant, Owens-Illinois, Inc. (Owens-Illinois or appellant) appeals from the same judgment and orders denying its motion

Page 1283

for judgment notwithstanding the verdict and its motion for a new trial or, in the alternative, for a remittitur.

Appellants request us to reverse the judgment below or, in the alternative, vacate the judgment and remand for a new trial. In the alternative, appellants ask us to vacate the punitive damages award and remand for a new trial on the issue of punitive damages.

BACKGROUND

This appeal is one of many which arises from thousands of cases filed against manufacturers and producers of asbestos, resulting in unparalleled litigation in American tort law. See Racich v. Celotex Corp., 887 F.2d 393, 394 (2d Cir.1989); In re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 182, 93 L.Ed.2d 117 (1986). The cases have been filed pursuant to New York's one-year revival statute for certain toxic torts, including alleged asbestos related torts, 1986 N.Y.Laws, ch. 682, Sec. 4. To manage the litigation, all of the cases in the Southern and Eastern Districts were assigned for pre-trial purposes to Judge Sifton. Racich, 887 F.2d at 395.

At a pretrial conference on November 4, 1988, the court proposed that another asbestos tort case, Higgins v. Raymark Industries, Inc., CV-87-0537 (S.D.N.Y.), be consolidated with Johnson which was scheduled for trial on November 7, 1988. The trial court ordered on November 7, 1988 that Higgins and Johnson be consolidated for trial. Plaintiff Higgins, a chipper and caulker, whose work included chipping off welded sections to prepare for repair work of others, was alleged to have died because of exposure to asbestos while at the Brooklyn Navy Yard from approximately 1946 to 1966. Appellee-plaintiff, John Johnson (plaintiff), an electrician's helper, alleged that he had contracted lung disease while working at the Brooklyn Navy Yard from 1942 to 1945 by inhaling asbestos fibers during this employment.

In Johnson and Higgins compensatory and punitive damages were sought for claims sounding in negligence and strict liability for defendants' failure to warn of the health risks of their asbestos-containing products.

The Court declined to trifurcate or bifurcate the trial to separate issues of causation and compensatory damages from issues of liability and punitive damages. Appellants' motions to have separate juries consider claims of liability and punitive damages in Johnson, apart from claims in Higgins, were denied. Appellants' motion to preclude all evidence of knowledge post-1945 in relation to plaintiff Johnson was denied. Eight defendants settled and one filed a petition in bankruptcy prior to trial. The Higgins and Johnson cases proceeded to trial against defendants Celotex, Owens-Illinois and Raymark Industries, Inc. (Raymark). The jury rendered a verdict for the plaintiffs in both cases. In Higgins, plaintiff was awarded $1 million in compensatory damages and $3 million in punitive damages, divided equally among Celotex, Raymark and Owens-Illinois. In Johnson compensatory damages were $350,000 (Celotex 12.5%, Raymark 12.5%, Owens-Illinois 5.0%, seven settling co-defendants 10% each), and punitive damages were assessed as follows: Celotex $1 million, Raymark $1 million and Owens-Illinois $800,000. Plaintiff Ann Marie Johnson was awarded $30,000 for loss of services.

After the verdict, but before entry of judgment, it was discovered that Celotex had never been named or served as a defendant in the Higgins case. Further, since Florida was the principal place of business of Celotex and the residence of plaintiff in Higgins, the trial court determined there was lack of diversity as to Celotex.

In response to post-trial motions the Court ordered an amendment to the pleadings to add Celotex as a party-defendant pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. The Court then dismissed the complaint in the Higgins case as to Celotex for lack of jurisdiction and retained its diversity jurisdiction over defendants Raymark and Owens-Illinois. A subsequent bankruptcy proceeding has stayed this case with regard to Raymark.

Page 1284

FACTS

Plaintiff John Johnson, an employee of the United States Navy, worked as an electrician's helper at the Brooklyn Navy Yard from 1942 to 1945. The Brooklyn Navy Yard covered an area of about three miles and in the entire yard there were approximately 20 ships under construction or repair. He installed electrical wiring in new and older ships. Although Johnson did not work with any product that he knew contained asbestos, he worked in the vicinity of other tradespeople who installed asbestos insulation material on ships. Johnson could not identify by name any workers in his vicinity or the trade name or manufacturer of any asbestos materials used at the shipyard. Johnson recalled working on destroyers, battleships and in particular remembered working on the Iowa, the Missouri and the Franklin at the yard. He testified that his work area was always dusty and that he would brush off a very fine snow-like dust that accumulated on his clothes.

Product identification testimony was based upon the testimony of other workers employed at the Navy Yard at approximately the same time as Johnson. The co-workers identified over a dozen makers of asbestos-containing products used at the Navy Yard at different times.

In 1945, Johnson left the Navy Yard and was not later exposed to any other asbestos containing products. In 1985, after retirement, Johnson was diagnosed with a lung condition which was attributed to asbestos exposure.

CONTENTIONS OF THE PARTIES

Appellants contend the trial court abused its discretion in consolidating the Johnson and Higgins cases. They further urge the connection with plaintiff's injury and appellants' products was insufficient as a matter of law. As to the issue of punitive damages, appellants maintain the Fourteenth Amendment bars an award of punitive damages because appellants have been subjected to repeated punitive damages for the same course of conduct. They also claim procedural due process violations and contend that the punitive damages were not supported by the evidence as a matter of law. Lastly, appellants claim the improper conduct of the trial court together with inflammatory conduct by counsel for plaintiff and improper rulings allowed the jury to hear evidence that should not have been heard, all resulting in a verdict which was the result of pressure and prejudice and which should be revised.

Appellants seek reversal of the judgment, or in the alternative, request that the judgment be vacated and the case be remanded for a new trial as to all issues. Celotex requests that in the alternative, the punitive damage award should be vacated and the case remanded on the issue of punitive damages. Plaintiff seeks affirmance of the judgment below.

DISCUSSION

Consolidation

Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate actions for trial when there are common questions of law or fact to avoid unnecessary costs or delay. Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir.1964), cert. denied, 382 U.S. 812, 86 S.Ct. 23, 15 L.Ed.2d 60 (1965); Zervos v. S.S. Sam Houston, 427 F.Supp. 500 (S.D.N.Y.1976), aff'd, 636 F.2d 1202 (2d Cir.1980).

Consolidation of tort actions sharing common questions of law and fact is commonplace. See, e.g., Arnold v. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir.1982), cert. denied, 460 U.S. 1102, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983); Kershaw v. Sterling Drug, Inc., 415 F.2d 1009 (5th Cir.1969). This is true of asbestos-related personal injury cases as well. See, e.g., Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (11th Cir.1985); Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Pa.1982), aff'd sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir.1985); Wilson v. Johns-Manville Sales Corp., 107 F.R.D. 250 (S.D.Tex.1985).

The trial court has broad discretion to determine whether consolidation is appropriate.

Page 1285

See, e.g., Midwest Community Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491 (N.D.Ill.1983); Stemler v. Burke, 344 F.2d 393 (6th Cir.1965). In the exercise of discretion, courts have taken the view that considerations of judicial economy favor consolidation. See, e.g., Romacho v. Stanley, 567 F.Supp. 1417, 1419 n. 2 (S.D.N.Y.1983), aff'd sub nom. Morse v. Stanley, 732...

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493 practice notes
  • 210 E. 86th St. Corp. v. Combustion Engineering, No. 87 Civ. 6497 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 1993
    ...1955), aff'd sub nom.; People v. DiStefano, 1 N.Y.2d 739, 152 N.Y.S.2d 288, 135 N.E.2d 45 (1956); see also Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990); Bauer v. Raymark Industries, Inc., 849 F.2d 790, 792-93 (......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 18, 1995
    ...& Southern Districts Asbestos Litig., 124 F.R.D. 538, 543 (E. & S.D.N.Y.1989) (Sifton, J.), aff'd sub nom. Johnson v. Celotex Corp., 899 F.2d 1281, cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 Even if contributory negligence were the appropriate doctrine to apply, however, T &......
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...of the intensity of exposure is often recognized implicitly in the statement of facts. (See Johnson v. Celotex Corp. (2d Cir.1990) 899 F.2d 1281, 1284.) Conversely, in Gideon v. Johns-Manville Sales Corp. (5th Cir.1985) 761 F.2d 1129, 1144, the court reversed a judgment against a defendant ......
  • Davis v. Celotex Corp., No. 20651
    • United States
    • Supreme Court of West Virginia
    • July 21, 1992
    ...justify a jury instruction on punitive damages in asbestos injury cases in other jurisdictions. For example, in Johnson v. Celotex Corp., 899 F.2d 1281, 1288 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), the Court of Appeals for the Second Circuit found this ......
  • Request a trial to view additional results
494 cases
  • 210 E. 86th St. Corp. v. Combustion Engineering, No. 87 Civ. 6497 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 31, 1993
    ...1955), aff'd sub nom.; People v. DiStefano, 1 N.Y.2d 739, 152 N.Y.S.2d 288, 135 N.E.2d 45 (1956); see also Johnson v. Celotex Corp., 899 F.2d 1281, 1285-86 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990); Bauer v. Raymark Industries, Inc., 849 F.2d 790, 792-93 (......
  • Chase Manhattan Bank, NA v. T & N PLC, No. 87 Civ. 4436 (JGK).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • October 18, 1995
    ...& Southern Districts Asbestos Litig., 124 F.R.D. 538, 543 (E. & S.D.N.Y.1989) (Sifton, J.), aff'd sub nom. Johnson v. Celotex Corp., 899 F.2d 1281, cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 Even if contributory negligence were the appropriate doctrine to apply, however, T &......
  • Lineaweaver v. Plant Insulation Co., No. A060263
    • United States
    • California Court of Appeals
    • January 31, 1995
    ...of the intensity of exposure is often recognized implicitly in the statement of facts. (See Johnson v. Celotex Corp. (2d Cir.1990) 899 F.2d 1281, 1284.) Conversely, in Gideon v. Johns-Manville Sales Corp. (5th Cir.1985) 761 F.2d 1129, 1144, the court reversed a judgment against a defendant ......
  • Davis v. Celotex Corp., No. 20651
    • United States
    • Supreme Court of West Virginia
    • July 21, 1992
    ...justify a jury instruction on punitive damages in asbestos injury cases in other jurisdictions. For example, in Johnson v. Celotex Corp., 899 F.2d 1281, 1288 (2d Cir.), cert. denied, 498 U.S. 920, 111 S.Ct. 297, 112 L.Ed.2d 250 (1990), the Court of Appeals for the Second Circuit found this ......
  • Request a trial to view additional results

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