Kelly v. Johns-Manville Corp.
| Decision Date | 07 August 1984 |
| Docket Number | Civ. A. No. 81-5241. |
| Parties | John V. KELLY v. JOHNS-MANVILLE CORP., et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
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Joni J. Berner, Maryann Q. Modesti, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for plaintiff.
Diana S. Donaldson, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for National Gypsum.
John M. Phelan, Phillips & Phelan, Philadelphia, Pa., for US Gypsum.
Stewart C. Crawford, Stewart Crawford Associates, Swarthmore, Pa., for Delaware Insulation.
Richard J. Tanker, Prewit Associates, Philadelphia, Pa., for Porter Hayden Co.
Joseph P. Ryan, Curran, Mylotte, David & Fitzpatrick, Philadelphia, Pa., for Pittsburgh-Corning Corp.
Plaintiff commenced this action against several manufacturers and distributors of asbestos products on December 21, 1981. Plaintiff alleges that defendants are liable to him for injuries that he sustained as a result of his exposure to asbestos over his working life as an insulator. Mr. Kelly initially claimed only that he had contracted asbestosis. He now claims that he suffers from epidermoid carcinoma caused by exposure to asbestos fibers. Plaintiff's counsel represented to the court at a conference on July 5, 1984, that at that time plaintiff had settled or voluntarily dismissed his claims against all but five defendants: Pittsburgh-Corning Corporation, Delaware Insulation Company, Porter Hayden Company, National Gypsum Company, and United States Gypsum Company. Since July 5, counsel have represented to the court that plaintiff has settled his claim against Pittsburgh-Corning, leaving only four defendants.1
This court has adopted a procedure under which asbestos cases are initially assigned to one judge and then reassigned to another judge for trial. This case was originally assigned to Judge Troutman. It was reassigned to me for a trial which was to commence on July 9, 1984. During the first week of July, however, it became painfully clear that this matter was a long way from trial readiness.
In the weeks preceding trial, the parties filed a flurry of motions. Surprisingly, two and one-half years after the commencement of this action, the parties had not resolved their discovery disputes to the point of satisfying each other as to the sufficiency of answers to interrogatories. On June 15, 1984, United States Gypsum filed a motion to compel plaintiff to make more specific answers to its interrogatories. Plaintiff responded to that motion on June 28 and, at the same time, filed his own motion to compel United States Gypsum to answer interrogatories. United States Gypsum filed its response to plaintiff's motion to compel on July 5 and also filed a supplemental memorandum in support of its own motion to compel at the same time. Meanwhile, plaintiff filed a second motion to compel answers to interrogatories on July 6, this time addressed to National Gypsum Company. Plaintiff had served National Gypsum with this motion before filing it with this court. National Gypsum responded to plaintiff's July 6 motion on July 5. Plaintiff filed a supplemental memorandum replying to National Gypsum's response on July 16. Thus, on the scheduled day of trial, the court would have faced three outstanding discovery motions.
It was not merely discovery disputes that awaited resolution during the first week of July. On June 22, National Gypsum filed a motion for summary judgment based principally upon plaintiff's inability to adduce evidence that he was exposed to National Gypsum products.2 Plaintiff provided the court with a response to that motion on July 5 and filed the response on July 6.3
On June 28, Porter Hayden filed a motion for summary judgment principally based upon plaintiff's failure to adduce any evidence of exposure to products distributed by Porter Hayden during any period when plaintiff was not employed by Porter Hayden. Porter Hayden asserted the New Jersey workers' compensation statute as a bar to plaintiff's recovery. See N.J.Stat. Ann. 34:15-8 (West Supp.1984). Plaintiff responded to this motion on July 5, filing the response on July 6.
On June 29, National Gypsum filed a second motion for summary judgment based upon the statute of limitations. All other defendants have since joined in this motion. Plaintiff responded to National Gypsum's second motion on July 5, filing the response on July 6.
On July 5, Delaware Insulation Company filed a motion for summary judgment asserting the Pennsylvania workers' compensation statute as a defense to plaintiff's claim. See Pa.Stat.Ann. tit. 77, § 481 (Purdon Supp.1983). Plaintiff has never responded to Delaware Insulation's motion.
Finally, on July 6, United States Gypsum filed a motion for summary judgment based upon plaintiff's inability to adduce evidence of his exposure to United States Gypsum's products. Plaintiff responded to this motion on July 16.
Obviously, on July 3, this court was not aware of all of the motions that the parties would file. However, by that day I faced an unjoined motion to compel answers from United States Gypsum. Moreover, I faced two unjoined motions for summary judgment filed by National Gypsum and one filed by Porter Hayden. I therefore decided to schedule oral argument on the pending motions for July 5 at 2:00 p.m.
At 1:58 p.m. on July 5 my law clerk first received a copy of Delaware Insulation's motion for summary judgment. At 2:12 p.m. counsel for plaintiff arrived with responses to National Gypsum's motions for summary judgment and to Porter Hayden's motion, and with an additional motion to compel answers to interrogatories from National Gypsum. I thereupon decided to forego oral argument on the pending motions and to engage the parties in settlement discussions. These discussions proved fruitless, as did further discussions that afternoon conducted by Judge Weiner. Accordingly, on Friday, July 6, I asked my law clerk to inform counsel that I would postpone trial and that they could have until July 12 to supplement any of their submissions. Following this chamber's usual practice, my law clerk called counsel for one party, in this case National Gypsum, and advised her of the new timetable and requested her to inform all other counsel. National Gypsum's counsel apparently misunderstood this request and failed to inform plaintiff's counsel of the July 12 deadline for supplemental submissions. Plaintiff's counsel did not learn of this deadline until July 11, when she requested an extension until Monday, July 16, which I granted.
On July 12, Porter Hayden, United States Gypsum, and National Gypsum filed supplemental memoranda. On July 16, plaintiff filed four supplemental memoranda addressed to various of the pending motions. This Memorandum and the accompanying Order resolve the pending motions.
The parties disagree over which state's substantive law should govern this diversity action. Plaintiff takes the position that New Jersey law governs all claims in this case and all defenses except Delaware Insulation's defense based upon the Pennsylvania Workmen's Compensation Act. On the other hand, all defendants except Porter Hayden take the position that Pennsylvania law governs plaintiff's claims and all defenses. Porter Hayden takes what would seem to be somewhat inconsistent positions. On the other hand, Porter Hayden contends that New Jersey substantive law governs plaintiff's claim against it, but on the other hand Porter Hayden has adopted National Gypsum's motion for summary judgment on the statute of limitations ground, a motion which argues for the application of Pennsylvania substantive law.
Plaintiff cites no authority for the application of New Jersey law other than Klaxon v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1940), and Griffith v. United Airlines, Inc., 416 Pa. 1, 203 A.2d 796 (1964). Klaxon, of course, merely requires a district court in a diversity action to apply the choice of law rule of the state in which it sits. Griffith states, in general fashion, the Pennsylvania choice of law rule. Griffith announced the Pennsylvania Supreme Court's abandonment of "the strict lex loci delicti rule ... in favor of a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court." 416 Pa. at 21, 203 A.2d at 806 (footnote omitted). This "more flexible rule" combines Professor Currie's "interest analysis" and the approach taken by the Restatement (Second) of Conflict of Laws. Brown v. Santonella, Civil Action No. 83-4016, slip op. at 4-5 .
As framed by counsel, plaintiff's argument as to why Griffith mandates the application of New Jersey law is unenlightening:
Plaintiff, a New Jersey resident alleges exposure to asbestos products supplied by the remaining defendants while employed at job locations in New Jersey. There are sufficient sic connections with Pennsylvania since the release of other defendants to this action. Thus, the substantive law of the State of New Jersey is to be applied.
Plaintiff's Supplemental Memorandum of Law in Opposition to National Gypsum Company's Motion for Summary Judgment Based on the Statute of Limitations at 2.
I read this argument as a contention that both the Second Restatement approach and "interest analysis" dictate the application of New Jersey substantive law to this action. Plaintiff asserts that he is a resident and citizen of New Jersey. He claims that all of his exposure to the remaining defendants' products occurred in New Jersey.4 Plaintiff's complaint also alleges that none of the remaining defendants is a Pennsylvania corporation nor does any of the remaining defendants have a principal place of business in Pennsylvania.
Because none of the remaining defendants is a Pennsylvania citizen, because plaintiff is a New Jersey citizen and resident, and...
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