Kulzer v. Pittsburgh-Corning Corp., PITTSBURGH-CORNING
| Decision Date | 08 August 1991 |
| Docket Number | D,PITTSBURGH-CORNING,1231,Nos. 1230,s. 1230 |
| Citation | 942 F.2d 122 |
| Parties | , Prod.Liab.Rep. (CCH) P 12,944 Pauline KULZER, as Executrix of the Estate of Richard Kulzer, Deceased, Plaintiff-Appellee, v.CORP.; Eagle-Picher Industries, Inc.; Owens-Corning Fiberglas Corp.; Owens-Illinois, Inc.; the Celotex Corporation; Raymark Industries, Inc.; Amchem Products, Inc.; GAF Corp.; Armstrong World Industries; United States Gypsum Co.; H.K. Porter Company, Inc.; Nicolet, Inc.; Carey Canada, Inc., Defendants, Owens-Corning Fiberglas Corp., Defendant-Appellant-Cross-Appellee, Manville Corporation Asbestos Disease Comp. Fund, Third-Party-Defendant-Appellee-Cross-Appellant. ockets 90-9062, 90-9132. |
| Court | U.S. Court of Appeals — Second Circuit |
Franklin B. Velie, New York City (Maria T. Galeno, Janis G. White, Suzanne Spector, Christy & Viener, New York City, Damon & Morey, Buffalo, N.Y., of counsel), for defendant-appellant-cross-appellee Owens-Corning Fiberglas Corp.
Michael Yoeli, New York City (David Henry Sculnick, John J. Laden, Gordon & Silber, of counsel), for third-party-defendant-appellee-cross-appellant Manville Corp. Asbestos Disease Compensation Fund.
Stephen G. Schwarz, Rochester, N.Y. (Matthew F. Belanger, Faraci, Guadagnino, Lange & Johns, of counsel), for plaintiff-appellee.
Before MESKILL, PRATT and WALKER, Circuit Judges.
The dispositive question raised on appeal is whether this wrongful death action falls within an exception to section 4 of the New York Toxic Tort Reform Act of 1986, Ch. 682, § 4, reprinted in 1 McKinney's Session Laws of New York 1567 (1986) ("revival statute" or "statute"). Plaintiff Pauline Kulzer (plaintiff) brought this wrongful death action under the revival statute on behalf of her deceased husband Richard Kulzer (Kulzer) in the United States District Court for the Western District of New York, Telesca, J. One of the defenses raised by appellant Owens-Corning Fiberglas Corporation (OCF) was that an exception to the statute prevented plaintiff from reviving her husband's claim and that the action therefore was barred by the applicable statute of limitations. The district court rejected OCF's defense on two grounds. It first held that OCF had waived this defense. It then held that the exception did not apply to this case. Because neither rationale comports with our holdings in Santos v. District Council of New York City, 619 F.2d 963, 967 (2d Cir.1980), or Monte v. National Gypsum Co., 921 F.2d 405 (2d Cir.1990), and because OCF's motion for a directed verdict should have been granted, we reverse and remand with instructions to dismiss the complaint.
Richard Kulzer worked for the Eastman Kodak Company from January 1947 to July 1980. Throughout this time he was exposed in varying degrees to asbestos and asbestos-containing products produced by a wide array of corporations. Of particular importance to this appeal, he was exposed to Kaylo, an asbestos-containing insulator manufactured by OCF, and to asbestos produced by the Manville Corporation, which is now represented by the third-party defendant and cross-appellant Manville Corporation Asbestos Disease Compensation Fund (Manville). Kulzer worked directly with Kaylo as an insulator for Kodak from the early 1950s until the early 1970s. In approximately 1971, Kodak promoted Kulzer to a supervisory position, called a "lead man." In that capacity Kulzer continued to work with pipe insulation incurring further, although less significant, exposure to asbestos. In January 1977, Kulzer was promoted again, to crew foreman. While his exposure to asbestos diminished further in this capacity, the allegations in plaintiff's complaint as well as the evidence adduced at trial showed that as a foreman Kulzer continued to be exposed to asbestos.
In July 1980, Kulzer was diagnosed with mesothelioma, a form of cancer linked to asbestos exposure. He retired from Kodak that month. He died approximately one year later, on August 31, 1981.
Kulzer's wife filed a workers' compensation claim on January 25, 1982, alleging mesothelioma secondary to asbestos exposure. More than five years later, on April 28, 1987, she filed this diversity action in the Western District of New York. She Prior to trial plaintiff settled or discontinued with all of the defendants except OCF, Manville, Owens-Illinois, Inc., and Eagle-Picher Industries, Inc. The trial began on April 17, 1990. After the close of plaintiff's proof, OCF moved for a directed verdict, contending that plaintiff's claim was time barred due to an exception to the revival statute. Even though OCF had raised a statute of limitations defense in its answer, the district court found that OCF had waived the defense by failing to plead it more specifically or to give plaintiff sufficient notice of it through pretrial motions. The court also stated that OCF was "estopped from raising [this defense] as it seeks to do, mid-way through the trial, after the plaintiff has closed her case." The court concluded:
alleged that OCF, Johns-Manville, and several other manufacturers produced or contributed to the production of asbestos-containing products, the exposure to which caused her husband's death. Plaintiff brought her claim during the one year time window provided by the revival statute for claims arising from the latent effects of exposure to asbestos
The defendants have simply waited too long and have brought this motion too late in this trial to benefit from a statute of limitations defense which was never effectively pleaded.... The motion for a directed verdict is denied. The jury will decide this case.
The trial proceeded. On May 8, 1990, the jury returned a verdict finding that none of the defendants sold or marketed defective products.
After the verdict plaintiff settled with Owens-Illinois and Eagle-Picher. She then made a motion for a new trial against OCF. By a decision and order dated July 5, 1990, the district court granted plaintiff's motion, finding the jury's determination "against the clear weight of the evidence" and accordingly setting aside the jury verdict.
During the interlude between the first and second trials, plaintiff moved to amend her complaint to state that Kulzer's exposure to asbestos ceased after 1971. OCF simultaneously made a second motion to dismiss the complaint, again on the grounds that an exception to the revival statute applied. After the close of both parties' proof in the second trial, the court issued its decision on OCF's motion to dismiss. The court again found that OCF had waived its limitations defense because its answer failed to raise with sufficient specificity the inapplicability of the revival statute. As an alternative ground for its decision, the court rejected OCF's motion on the merits, finding that after Kulzer "became foreman his duties drastically changed and he did not become meaningfully exposed to asbestos so it can be the proximate cause" of his death. With regard to plaintiff's motion to amend her complaint, the record shows no further discussion of it by the court. The court apparently never decided this motion.
On November 5, 1990, the jury returned a verdict in the second trial--this time in plaintiff's favor. The jury found OCF liable in the amount of $450,000 for wrongful death, $250,000 for conscious pain and suffering, $25,000 for plaintiff's derivative cause of action, and $21,468.25 for medical and burial expenses. The court added interest to the wrongful death award in the amount of $370,657.53, bringing the total award to $1,117,125.78. The jury apportioned 40 percent of the verdict to OCF, 25 percent to Manville, and the remaining 35 percent to the settling defendants.
On appeal from the judgment subsequently entered, OCF offers four general challenges: (1) the district court erred in denying its initial motion for a directed verdict and later motion to dismiss the complaint; (2) the district court improperly granted plaintiff's motion for a new trial; (3) certain evidentiary rulings, jury instructions and remarks by plaintiff's counsel deprived OCF of a fair (second) trial; and (4) the district court incorrectly calculated interest on the wrongful death award. Manville, in turn, cross-appeals, challenging the district court's award of prejudgment interest against it.
OCF attacks both pillars of the district court's denial of its motion for a directed verdict and motion to dismiss the complaint. OCF argues that it did not waive the right to assert a statute of limitations defense during either the first trial or prior to the second trial. It then claims that the district court applied the wrong standard for determining whether the revival statute applied and that, under the proper standard, its motions should have been granted.
The district court based its findings of waiver on OCF's failure to pursue the limitations defense through pretrial motions, the "boilerplate" manner in which OCF raised the defense, and the dissimilarity between the limitations defense to which OCF pleaded and the one it made in its two motions. These rationales do not support the court's decisions.
In Santos v. District Council of New York City, 619 F.2d 963 (1980), we rejected similar arguments. We held that Id. at 967. We also emphasized that the defense need not be articulated with any rigorous degree of specificity: Id. (emphasis added). We concluded that assertion of the defense in the defendant's answer, rather than in its...
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