Lee v. Pittsburgh Corning Corp.
| Citation | 616 A.2d 1045,420 Pa.Super. 423 |
| Parties | Walter LEE and Jennie Lee v. PITTSBURGH CORNING CORPORATION, Fibreboard Corporation, Johns-Manville Corp., Eagle-Picher, Keene Corp., Celotex, J.P. Stevens, Owens-Illinois Glass, GAF, PACOR, UNARCO, Raybestos-Manhattan, Southern Textile and Garlock. Appeal of FIBREBOARD CORPORATION. |
| Decision Date | 19 November 1992 |
| Court | Superior Court of Pennsylvania |
Richard T. Wentley, Pittsburgh, for appellant.
Faithe Moore, Philadelphia, for Walter & Jennie Lee, appellees.
Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
This is an appeal from the judgment entered in favor of appellees following the denial of appellant's request for post-trial relief and granting of appellees' request for delay damages. The issues raised on appeal are: (1) Whether the trial court erred in failing to apportion the damages to reflect the jury's finding that cigarette smoking was a substantial cause of the appellee's injuries; (2) Whether the trial court erred in denying appellant's request for a new trial; (3) Whether the trial court erred in refusing to grant remittitur of the jury's verdict; and (4) Whether the trial court erred in granting delay damages. Having determined that the trial court erred when it denied appellant's request for a new trial, we reverse and remand for a new trial. 1
This dispute arises from the following facts: Appellee, Walter Lee, a former worker at the Philadelphia Naval Shipyard brought an action against appellant and other asbestos manufacturers for damages arising from his exposure to asbestos. Appellee, Jennie Lee, also brought an action for loss of consortium. Specifically, appellees asserted that Mr. Lee developed lung cancer from his occupational asbestos exposure. In support of this proposition, appellees presented the testimony of Dr. James Guidice who testified that Mr. Lee's occupational asbestos exposure was the sole cause of Mr. Lee's lung cancer. Appellant countered that Mr. Lee's cancer was caused from his long history of cigarette smoking. Mr. Lee did in fact smoke cigarettes at a rate of a pack and one-half per day for thirty years but has not smoked a cigarette for over 18 years. Appellant supported its conclusion with the expert testimony of Dr. Theodore Rodman, who opined that Mr. Lee's cigarette smoking was the sole cause of the lung cancer. Dr. Rodman testified that without evidence of asbestosis, asbestos exposure was not a cause of Mr. Lee's lung cancer. Appellant also offered the expert testimony of Dr. William Weiss who testified that even after a person quits smoking, there still remains a risk of cancer. Dr. Weiss also testified as to the correlation between the location of the cancer in the lung and its cause. Dr. Weiss did not offer any opinions specifically as to the cause or causes of Mr. Lee's condition.
In essence, the controversy boiled down to whether it was appellee's exposure to asbestos or his cigarette smoking that caused his lung cancer. At trial, appellant contended that the jury should be instructed on the law of apportionment, and that any award should be reduced to exclude the damage caused by cigarette smoking. In response to appellant's request the trial court submitted to the jury the following verdict slip:
1. Do you find that asbestos was a substantial factor in causing Walter Lee's harm?
If your answer to question # 1 is "no", return to the courtroom as the Plaintiffs cannot recover.
If your answer to question # 1 is "yes," proceed to question # 2.
2. Do you find that cigarette smoking was a substantial factor in causing Walter Lee's harm?
If your answer to question # 2 is "no," proceed to question # 4.
If you have answered questions # 1 and # 2 "yes," proceed to question # 3.
3. Taking the two above substantial factors of Walter Lee's harm as a hundred percent, what percentage do you attribute to smoking and what percentage to asbestos?
percentage attributable to smoking %
----
percentage attributable to asbestos %
----
Total 100 %
----
4. Disregarding any of the above percentages, in what amount, if any, do you award damages to plaintiff Walter Lee? ... to Jennie Lee?
and gave this charge:
The jury returned a verdict determining that both asbestos and cigarette smoking were substantial factors in causing Mr. Lee's cancer. The jury apportioned 60% of the cause to smoking and 40% of the cause to asbestos exposure. They awarded Mr. Lee $1,000,000.00 in damages, and Mrs. Lee $500,000.00 for loss of consortium. After the jury returned its verdict, the trial court determined that it would be improper for it to mold the verdict to reflect the jury's apportionment of causation. The trial court reasoned that since all of the experts testified that either cigarette smoking or asbestos exposure was the sole cause of the injury, the jury was not given a sufficient basis upon which to determine the relative contributions of asbestos and cigarette smoking to the cause of Mr. Lee's cancer. Appellant asserts on appeal that the trial court's refusal to apportion was in error and that it is entitled to a molded verdict to reflect the jury's findings or, in the alternative, a new trial.
The first issue raised on appeal is whether the trial court erred in failing to mold the verdict in accordance with the jury's findings.
The rules in this Commonwealth governing apportionment of damages are consistent with those expressed in Restatement (Second) of Torts:
§ 433 A. Apportionment of Harm to Causes
(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.
Martin v. Owens-Corning Fiberglass, 515 Pa. 377, 528 A.2d 947, 949 (1987) (plurality opinion). "The rules stated apply also where one of the causes in question is the conduct of the plaintiff herself, whether it be negligent or innocent." Martin, 382, 528 A.2d at 949. The determination of whether a harm is capable of apportionment is a question of law, and the burden of proving apportionment rests on the party seeking it. Id.
The trial court found our Supreme Court's plurality decision in Martin v. Owens-Corning Fiberglass, supra determinative on this issue. In Martin, the Court was faced with the issue of whether sufficient evidence was presented to the jury to permit apportionment. The Martin Court reviewed the extensive expert testimony and determined that none of the experts separated the causes of the injury. Indeed two of the experts indicated that such a separation was impossible. Based on this evidence, the Court held that facts did not lend themselves to apportionment.
Thus, common sense and common experience possessed by a jury do not serve as substitutes for expert guidance, and it follows that any apportionment by the jury in this case was a result of speculation and conjecture and hence, improper. Rough approximation is no substitute for justice.
Id. at 384, 528 A.2d at 950. Since the jury was improperly instructed to apportion the damage award, and the award was obviously apportioned, the Court held that the award must be vacated and the case remanded for a trial limited to damages. See also Taylor v. Celotex, 393 Pa.Super. 566, 574 A.2d 1084 (1990).
Presently, we agree with the lower court's decision that there was insufficient evidence upon which the jury could apportion damages between cigarette smoking and asbestos exposure. The expert testimony was diametrically opposed as to the cause of appellee's injury. One of appellant's experts testified that cigarette smoking was the sole cause of the lung cancer. Contrarily, appellees' expert testified that asbestos exposure was the sole cause of the cancer. Neither party provided direct evidence that would attempt to apportion the harm caused by each. Without such testimony, the jury was left guessing at an appropriate apportionment. 2 As such, the trial court acted properly in refusing to mold the verdict in accordance with the jury's decision. Cf., Taylor, supra (); Borman v. Raymark Industries, Inc., 960 F.2d 327 (3rd Cir.1992).
In the alternative, appellant contends that because the jury was instructed on apportionment and the court then refused to mold the verdict, it is entitled to a new trial. This argument...
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