Lilley v. Johns-Manville Corp.
| Decision Date | 22 August 1991 |
| Docket Number | JOHNS-MANVILLE |
| Citation | 408 Pa.Super. 83,596 A.2d 203 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,019 Fred and Lorraine LILLEY, Appellants, v.CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Ind., Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois, Inc., Fibreboard Corp., GAF Corp. Fred and Lorraine LILLEY v.CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Industries, Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass Co., Fibreboard Corp., GAF Corp. Appeal of FIBREBOARD CORPORATION. Fred and Lorraine LILLEY, h/w v.CORP., Pacor, Inc., Eagle-Picher Ind., Unarco Industries, Inc., Keene Corp., Raybestos Manhattan, Inc., Celotex Corp., Southern Textile Co., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass Co., Fibreboard Corp., GAF Corp. Appeal of FIBREBOARD CORPORATION. |
| Court | Pennsylvania Superior Court |
Robert A. Nicholas, Philadelphia, for appellants (at 372) and for Lilley, appellees (at 373 & 374).
Steven J. Cooperstein, Philadelphia, for Fibreboard, appellant (at 373 & 374) and for Fibreboard, appellee (at 372).
Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
This is a consolidated appeal from a final judgment entered by the lower court in favor of Fred and Lorraine Lilley, plaintiffs below, who initiated the underlying action to recover damages from several manufacturers of asbestos and asbestos containing products. The complaint filed by the Lilleys alleged that between 1959 and 1976, Mr. Lilley's occupational duties brought him into daily contact with asbestos pipe insulation, asbestos packing material, and asbestos cement manufactured by the defendants. The Lilleys also alleged that as a result of his exposure to asbestos while working for the Sun Ship Company (now the Penn Ship Company), Mr. Lilley suffered extensive asbestos-related injuries attributable to the defendant corporations. Additionally, Mrs. Lilley alleged loss of consortium stemming from Mr. Lilley's injuries.
The trial was "reverse bifurcated" in that the jury first determined that Mr. Lilley was entitled to two hundred fifty thousand dollars ($250,000) in compensatory damages and that Mrs. Lilley should receive an award of one hundred thousand dollars ($100,000) for her loss of consortium claim. The parties then litigated the question of liability before the same jury, which found in favor of the Lilleys. When the liability phase of the trial commenced, the other seven remaining defendants had entered into settlement agreements with Mr. and Mrs. Lilley which provided for the release of joint tortfeasors on a pro rata basis. Based on the jury's determination of liability, the lower court entered a verdict against Fibreboard Corporation for one-eighth of the damages awarded by the jury.
Fibreboard Corporation timely filed post-trial motions seeking to overturn both the damage award and the finding of liability. Mr. and Mrs. Lilley also filed a post-trial motion which alleged that the evidence insufficiently established Mr. Lilley's exposure to the products of Garlock, Inc. and Eagle-Picher Industries, two of the settling parties. This motion requested that Fibreboard Corporation be held responsible for one-sixth rather than one-eighth of the jury's award. Additionally, the Lilleys lodged a separate request for delay damages. Although the Honorable Lawrence Prattis denied the motions for post-trial relief of both parties on November 30, 1989, he nevertheless ordered Fibreboard Corporation to pay delay damages to Mr. and Mrs. Lilley, and molded the jury verdict to reflect this award. Fibreboard Corporation's proportionate share of the verdict, including the delay damage assessment, totalled seventy-seven thousand seventy-six dollars and three cents ($77,076.03). 1 A judgment in that amount was subsequently entered in the lower court. For the reasons that follow, we affirm.
Fibreboard Corporation (hereinafter "Fibreboard" or "appellant") timely appealed to the Superior Court at Numbers 373 and 374, Philadelphia 1990 while Mr. and Mrs. Lilley (hereinafter "appellees") appealed at Number 372, Philadelphia 1990. Fibreboard filed its brief as the appellant on the consolidated appeals while the Lilleys prepared their brief as appellees/cross-appellants. Appellant has raised the following issues for our consideration: whether the lower court committed error of law in denying Fibreboard's motion for judgment non obstante veredicto and motion for a new trial due to: (1) appellees' failure to present competent medical evidence that exposure to Fibreboard's products was a substantial contributing factor to Mr. Lilley's asbestosis; (2) the lower court's refusal to charge the jury on the "de minimis " rule as it related to the "law of substantial contributing factor"; (3) permitting appellees' medical expert to testify that Mr. Lilley had a reasonable basis for a fear of cancer; (4) denying Fibreboard's motion in limine to preclude Mr. Lilley from telling the jury that he would be laid off from his job at the Pennsylvania Shipyard on May 1, 1989; and (5) awarding delay damages to appellees. In addition to presenting counter-statements of the questions raised by appellant, appellees have requested us to consider a sixth question: whether the lower court erred in denying their motion for a directed verdict on Fibreboard's cross-claims against defendants Garlock, Inc. and Eagle-Picher Industries. We shall address the parties' claims seriatim.
Appellant initially argues that it was an error of law for the lower court to refuse to grant judgment non obstante veredicto because the evidence adduced at trial was insufficient to sustain appellees' burden of proof regarding the necessary elements of a products liability claim. We note that appellant's motion for post-trial relief correctly requested judgment n.o.v. as the motion contests the sufficiency of the evidence. Where the evidence is insufficient to sustain the verdict, the remedy granted in civil cases is a judgment notwithstanding the verdict. Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 644 n. 6, 557 A.2d 730, 735 n. 6 (1989), allocatur denied, 523 Pa. 646, 567 A.2d 650 (1989). See also Solomon v. Baum, 126 Pa.Commw. 646, 652 n. 3, 560 A.2d 878, 881-82 n. 3 (1989), allocatur denied, 525 Pa. 636, 578 A.2d 930 (1990) ().
We agree with appellant that a judgment n.o.v. should be granted only in a clear case, and that all doubts should be resolved in favor of the verdict. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980). This court has clarified the standard of review applicable to the instant appeal by ruling that judgment n.o.v. is an extreme remedy which is properly entered by the trial court only where the facts are so clear that no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield Petroleum Products Co., 371 Pa.Super. 49, 58, 537 A.2d 814, 819 (1987), allocatur denied, 520 Pa. 590, 551 A.2d 216 (1988). In this context, only the evidence which supports the verdict will be considered, and the court must give the verdict winner the benefit of all doubt and of every fact and inference deducible from the evidence. Id. at 58-59, 537 A.2d at 819. Accord Atkins v. Urban Redevelopment Authority, supra. Judgment n.o.v. should not be entered in a case where the evidence is conflicting upon a material fact. Northwest Savings Association v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825 (1986); Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985). Applying these standards, we find that appellees met their burden of proving liability on the part of appellant Fibreboard.
The essence of appellant's argument is that appellees failed to demonstrate by competent medical testimony that Mr. Lilley inhaled asbestos fibers and that their source was a product manufactured by Fibreboard. 2 We agree with appellant that in order for liability to attach in a products liability action, a plaintiff must establish that his or her injuries were caused by a particular product of a defendant manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-91, 544 A.2d 50, 52 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988). As this pertains to an asbestos case, the plaintiff must demonstrate that he inhaled asbestos fibers shed by the specific product of the defendant. Id. at 191, 544 A.2d at 52. To this end, the plaintiff must prove that he worked in the vicinity of that product's use. Id. However, contrary to appellant's interpretation of that case, Eckenrod sets forth no requirement that causation be established solely by expert medical testimony.
It should be unnecessary for us to explain that the nexus between a specific asbestos product and a plaintiff's medical condition may be supplied by a variety of direct and circumstantial evidence which must necessarily include, but is not limited to, competent medical testimony. The testimony of any witness with knowledge regarding the plaintiff's work place and his or her exposure to a defendant's asbestos-containing products is admissible where probative. See, e.g., Samarin v. GAF Corp., 391 Pa.Super. 340, 348, 571 A.2d 398, 402-03 (1989), allocatur denied, 524 Pa. 629, 574 A.2d 71 (1990). We see no reason why a plaintiff should be excluded from testifying regarding asbestic products used either by himself or by his co-workers in or about the work place. 3 See also Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084 (1990) (...
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