Kirk v. Raymark Industries, Inc.

• Decision Date: 27 July 1995
• Docket Number: Nos. 94-1745,94-1746,s. 94-1745
• Citation: 61 F.3d 147
• Parties: 42 Fed. R. Evid. Serv. 883 Sarah A. KIRK, Administratrix of the Estates of Kirk, Alfred T., Deceased and Kirk, Sarah A. in her own right v. RAYMARK INDUSTRIES, INC.; Eagle-Picher Industries, Inc.; Keene Corporation; Garlock Inc; Owens-Corning Fiberglas Corporation; Celotex Corp.; GAF Corporation; Owens-Illinois Glass Company, Owens-Corning Fiberglas Corporation, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 147

61 F.3d 147

42 Fed. R. Evid. Serv. 883

Sarah A. KIRK, Administratrix of the Estates of Kirk, Alfred

T., Deceased and Kirk, Sarah A. in her own right v. RAYMARK INDUSTRIES, INC.; Eagle-Picher Industries, Inc.;

Keene Corporation; Garlock Inc; Owens-Corning Fiberglas

Corporation; Celotex Corp.; GAF Corporation;

Owens-Illinois Glass Company, Owens-Corning Fiberglas

Corporation, Appellant.

Nos. 94-1745, 94-1746.

United States Court of Appeals,

Third Circuit.

Argued Feb. 14, 1995.

Opinion Filed April 14, 1995.

Panel Rehearing Granted May 22, 1995.

Resubmitted on Supplemental Briefing June 12, 1995.

Decided July 27, 1995.

Joseph M. Greitzer, Jerry Kristal (argued), Greitzer & Locks, Philadelphia, PA, for appellees Sarah A. Kirk, Administratrix of Estates of Kirk, Alfred T., deceased and Kirk, Sarah A. in her own right.

Robert N. Spinelli, W. Matthew Reber (argued), Kelley, Jasons, McGuire & Spinelli, Philadelphia, PA, for appellant Owens-Corning Fiberglas Corp.

Before: STAPLETON, GREENBERG and COWEN, Circuit Judges.

OPINION OF THE COURT

COWEN, Circuit Judge.

This asbestos-related personal injury action was tried to a jury in the United States District Court for the Eastern District of Pennsylvania. The jury returned a verdict in favor of the plaintiff in excess of two million dollars. On application by counsel, the district court granted plaintiff delay damages in the amount of $520,684. In these consolidated appeals, we are called on to determine whether: (1) the district court abused its discretion by denying the defendant's challenge for cause of two jurors who allegedly evidenced bias against the defense; (2) the defendant has waived any claim that there was a violation of its statutory right to exercise peremptory challenges; (3) a denial or impairment of the exercise of peremptory challenges occurs if the defendant uses one or more challenges to remove jurors who should have been removed for cause; and (4) a per se reversal is the appropriate remedy for such impairment or whether the defendant must also make a showing of prejudice. Additionally, we are called upon to determine whether the district court committed an error of law by: (1) allowing plaintiff to introduce into evidence the prior testimony of an out of court expert witness from an unrelated state court action; (2) permitting plaintiff to introduce the interrogatory responses of a co-defendant who settled with the plaintiff prior to trial; (3) awarding plaintiff delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure.

Because we conclude the district court abused its discretion in denying the defendant's challenge for cause of two jurors during voir dire, and because we conclude that this effected a denial or impairment of the defendant's statutory right to peremptory challenges requiring per se reversal, we will reverse the judgment of the district court and remand for a new trial on the issue of damages and liability. ¹ Since it is likely that the hearsay issues and the issue of delay damages may arise again during the new trial, we deem it appropriate to offer the district court guidance. On these subjects, we conclude that the district court erred as a matter of law in allowing the introduction of hearsay evidence, but did not err in ruling that delay damages would be permitted when delay was caused by a judicial stay for which the plaintiff was not responsible.

I. Factual and Procedural History

Alfred Kirk ("decedent"), a retired painter, died on July 5, 1988 at the age of 65 from malignant asbestos-induced mesothelioma. Mrs. Sarah Kirk ("Kirk"), suing on behalf of herself and her deceased husband's estate, filed this diversity action against eight defendants, including Owens-Corning Fiberglas Corporation ("Owens-Corning"). ² Kirk alleged that her husband's mesothelioma was caused by exposure to dust from asbestos products during his employment at the New York Shipyard in Camden, New Jersey, during the late 1950's and early 1960's.

By order dated July 29, 1991, the Judicial Panel on Multidistrict Litigation ("MDL") transferred all pending federal asbestos personal injury actions to the Eastern District of Pennsylvania. Pursuant to the MDL Panel's Order, all federal asbestos cases were stayed until the summer of 1993.

During jury selection, Owens-Corning challenged for cause two prospective jurors maintaining that the prospective jurors could not be impartial because they revealed considerable potential bias against Owens-Corning during voir dire. The district court refused to strike these prospective jurors for cause, and Owens-Corning was then compelled to utilize two of its three peremptory strikes to remove these prospective jurors. ³

On December 13, 1993, the trial (which was reverse-bifurcated) began with issues of medical causation and damages. At the conclusion of this phase of the trial, the jury returned a verdict in favor of the Estate of Alfred Kirk for $1.2 million and in favor of Sarah Kirk for $810,000. The liability phase of the trial commenced several days later before the same jury that had previously heard the damages phase. At the conclusion of the liability trial, the jury returned a verdict against Owens-Corning. The jury also found that the decedent was not exposed to dust emitted by any asbestos-containing product manufactured by co-defendant Garlock, Inc. ("Garlock").

Following the jury verdict, Owens-Corning moved for a new trial, alleging several trial errors including: (1) failing to strike two prospective jurors for cause; and (2) allowing the introduction of hearsay evidence. This application was denied by the district court. Kirk filed an application for delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure, which the district court granted in the amount of $520,684. Owens-Corning appeals from both the judgment and the award of delay damages.

Owens-Corning argues that the district court made several errors which require reversal of both the damage and liability phases of the trial, and that the district court improperly denied its post-verdict motion for a new trial. Finally, Owens-Corning claims that delay damages should not have been awarded to Kirk, because the delay was caused by the plaintiff filing simultaneous federal and state court actions and/or caused by the MDL order staying all asbestos cases, and was not caused by any bad faith on the part of Owens-Corning. We will address each of these arguments seriatim.

The district court had jurisdiction to hear this case pursuant to 28 U.S.C. Sec. 1332. Our jurisdiction is premised on 28 U.S.C. Sec. 1291 as the judgment entered was a final order.

II. Juror Challenges

A. Challenges for Cause

Owens-Corning argues that the district court erred in refusing to strike for cause two prospective jurors (juror # 251 and juror # 45) who the defendant argues revealed considerable potential bias against it during voir dire. As a consequence, Owens-Corning claims that it was forced to expend or "waste" two of its peremptory strikes to remove these two jurors from the jury. We review for abuse of discretion a district court's decision regarding a motion to dismiss a juror for cause. United States v. Polan, 970 F.2d 1280, 1284 (3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1367, 122 L.Ed.2d 745 (1993) (citing United States v. Salamone, 800 F.2d 1216, 1226 (3d Cir.1986) (the factual determination by the district court whether a juror can serve impartially is entitled to special deference when reviewed on appeal), cert. denied, 498 U.S. 1030, 111 S.Ct. 685, 112 L.Ed.2d 676 (1991)).

Because the trial judge is in the best position to assess the credibility and demeanor of the prospective jurors, "district courts have been awarded ample discretion in determining how best to conduct the voir dire." Waldorf v. Shuta, 3 F.3d 705, 710 (3d Cir.1993) (citing Rosales-Lopez v. United States, 451 U.S. 182, 189, 101 S.Ct. 1629, 1635, 68 L.Ed.2d 22 (1981)). In determining whether a particular juror should be excused for cause, our main concern is "whether the juror holds a particular belief or opinion that will 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.' " Salamone, 800 F.2d at 1226 (citing Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985)). "A juror is impartial if he or she can lay aside any previously formed 'impression or opinion as to the merits of the case' and can 'render a verdict based on the evidence presented in court.' " Polan, 970 F.2d at 1284 (citing Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961)). However, the district court should not rely simply on the jurors' subjective assessments of their own impartiality. See Waldorf, 3 F.3d at 710 (district court relied too heavily on jurors' assurances of impartiality); see also Government of the Virgin Islands v. Dowling, 814 F.2d 134, 139 (3d Cir.1987) (though a juror swears that he could set aside any opinion he might hold and decide the case on the evidence, a juror's protestation of impartiality should not be credited if other facts of record indicate to the contrary), aff'd, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990).

Owens-Corning argues that prospective juror # 251 should have been struck for cause because he worked with asbestos-containing products for many years and indicated during voir dire that he was leaning in favor of the plaintiff. Kirk argues that this prospective juror was properly placed on the jury because when questioned by both the district court and counsel whether he could render a fair and impartial verdict, the prospective juror responded in the affirmative.

We are troubled by the fact that a district judge, despite assurances of impartiality, allowed a prospective juror to serve in a mesothelioma case when the juror's background raised serious questions as to his ability...