Neal v. Carey Canadian Mines, Ltd., Civ. A. No. 78-4242.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: Joel D. Gusky, Philadelphia, Pa., for Carey Canadian Mines, Ltd
• Citation: 548 F. Supp. 357
• Parties: Stella J. NEAL, Administratrix of the Estate of George R. Neal, and Stella J. Neal on her own behalf; Levina Romano, Administratrix of the Estate of Louis Romano, and Levina Romano on her own behalf; Harry F. Belz and Marian Belz; Walter and Helen Bogdanski; Judy Simpson, Administratrix of the Estate of Arnold Foulke; Helen Hojnacki, Administratrix of the Estate of Edward J. Hojnacki and Helen Hojnacki on her own behalf; Ronald A. Lenzi, Sr. and Lillian Lenzi; Joseph and Ann Mancini; Corrie Mitchell; Salvatore and Virginia Pascale; Vincent and Mary C. Raymond; Pasquale and Rita Ann Romano; Gerald C. and Margaret Wilmer; Jerry and Ruth B. Henley; Nathaniel and Lucille Satterwhite v. CAREY CANADIAN MINES, LTD., Johns-Manville Corporation, Johns-Manville Products Corporation, Johns-Manville Sales Corporation, Canadian Johns-Manville Co., Ltd., Canadian Johns-Manville Mining Co., Ltd., Canadian Johns-Manville Asbestos, Ltd., Bell Asbestos Mines, Ltd., Asbestos Corporation, Ltd., Celotex Corporation, North American Asbestos Corporation, Philip Carey Manufacturing Company, Inc.
• Docket Number: Civ. A. No. 78-4242.
• Decision Date: 31 August 1982

548 F. Supp. 357

Stella J. NEAL, Administratrix of the Estate of George R. Neal, and Stella J. Neal on her own behalf; Levina Romano, Administratrix of the Estate of Louis Romano, and Levina Romano on her own behalf; Harry F. Belz and Marian Belz; Walter and Helen Bogdanski; Judy Simpson, Administratrix of the Estate of Arnold Foulke; Helen Hojnacki, Administratrix of the Estate of Edward J. Hojnacki and Helen Hojnacki on her own behalf; Ronald A. Lenzi, Sr. and Lillian Lenzi; Joseph and Ann Mancini; Corrie Mitchell; Salvatore and Virginia Pascale; Vincent and Mary C. Raymond; Pasquale and Rita Ann Romano; Gerald C. and Margaret Wilmer; Jerry and Ruth B. Henley; Nathaniel and Lucille Satterwhite
v.
CAREY CANADIAN MINES, LTD., Johns-Manville Corporation, Johns-Manville Products Corporation, Johns-Manville Sales Corporation, Canadian Johns-Manville Co., Ltd., Canadian Johns-Manville Mining Co., Ltd., Canadian Johns-Manville Asbestos, Ltd., Bell Asbestos Mines, Ltd., Asbestos Corporation, Ltd., Celotex Corporation, North American Asbestos Corporation, Philip Carey Manufacturing Company, Inc.

Civ. A. No. 78-4242.

United States District Court, E. D. Pennsylvania.

August 31, 1982.

548 F. Supp. 358

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548 F. Supp. 359

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548 F. Supp. 360

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548 F. Supp. 361

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548 F. Supp. 362

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548 F. Supp. 363

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548 F. Supp. 364

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548 F. Supp. 365

Lawrence D. Levin, Norristown, Pa., and Martin Greitzer, Philadelphia, Pa., for plaintiffs

Joel D. Gusky, Philadelphia, Pa., for Carey Canadian Mines, Ltd.

Robert St. Leger Goggin, and Charles W. Craven, Philadelphia, Pa., for Johns-Manville Group.

F. James Gallo, Philadelphia, Pa., for Bell Asbestos Mines, Ltd.

Frederic L. Goldfein, Philadelphia, Pa., for Asbestos Corp., Ltd.

Thomas O. Malcolm, West Chester, Pa., for Celotex Corp. and Philip Carey Mfg. Co., Inc.

Anthony S. Minisi, Philadelphia, Pa., for North American Asbestos Corp.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

This is a diversity action brought by former workers of the Philip Carey Manufacturing Company, Inc. ("Philip Carey"), their spouses, and representatives of decedents' estates, for compensatory and punitive damages arising out of the claimants' exposure to asbestos fiber while they were employed at the Philip Carey manufacturing plant in Plymouth Meeting, Pennsylvania. Presently before the Court are the post-trial motions filed both by plaintiffs and defendants. For the reasons which follow, the motions are denied.

I. Facts

On November 28, 1978, this action was commenced by the filing of plaintiffs' complaint in the Court of Common Pleas of Montgomery County, Pennsylvania. On December 19, 1978, defendants removed this case to federal court. Plaintiffs' complaint was brought on behalf of twenty-four former employees of the Philip Carey manufacturing plant, located in Plymouth Meeting, Pennsylvania. At this plant, Philip Carey manufactured asbestos-insulation products which contained raw asbestos fiber. The Plymouth Meeting plant opened in 1907 and closed in 1962. Plaintiffs sued Celotex Corporation ("Celotex"), as the successor-in-interest to Philip Carey, because plaintiffs allegedly contracted asbestos-related diseases through the inhalation of asbestos fiber used in the manufacture of insulation material at that plant. Plaintiffs also sued the following five companies because they allegedly supplied asbestos fiber to the Plymouth Meeting manufacturing plant during the time periods in which plaintiffs worked at that plant — Asbestos Corporation Limited ("Asbestos Corp."); Bell Asbestos Mines, Limited ("Bell Asbestos"); Carey-Canadian Mines, Limited ("Carey-Canadian"); Johns-Manville Corporation, Johns-Manville Products Corporation, Johns-Manville Sales Corporation, Canadian Johns-Manville Company, Limited, Canadian Johns-Manville Mining Company, Limited, Canadian Johns-Manville Asbestos, Limited (collectively "Johns-Manville"); and North American Asbestos Corporation ("NAAC").¹

Following the initiation of the action, two years of protracted discovery and lengthy pretrial proceedings with attendant delay ensued. Finally, on February 20, 1981, fifteen of the twenty-four claims were consolidated for trial and a jury was empaneled to hear the case.² The issues of liability and damages were bifurcated by the Court and the following claims were heard:

 Dates of
                Workers Employment
                (1) George Neal 1926-1962
                (2) Louis Romano (deceased) 1929-1962
                (3) Harry F. Belz 1944-1961
                (4) Walter Bogdanski 1929-1962
                (5) Arnold Foulke (deceased) 1936-1962
                (6) Edward J. Hojnacki (deceased) 1950-1961
                (7) Ronald A. Lenzi, Sr. 1947-1962
                (8) Joseph Mancini 1936-1961
                

548 F. Supp. 366
                 Dates of
                Workers Employment
                (9) Corrie Mitchell 1933-1962
                (10) Salvatore Pascale 1946-1962
                (11) Vincent Raymond 1948-1959
                (12) Pasquale Romano 1950-1961
                (13) Gerald C. Wilmer 1951-1960
                (14) Jerry Henley 1945-1962
                (15) Nathaniel Satterwhite 1946-1962
                

Defendants admitted that each of these workers had an asbestos-related condition by reason of exposure to asbestos fiber at the Plymouth Meeting plant but contested liability for each of the plaintiffs' injuries. Four principal issues were presented to the jury with respect to each plaintiff at the liability trial:

(1) whether the plaintiff, prior to November 28, 1976, knew or had reason to know that he had an asbestos-related condition caused by his exposure to asbestos fiber at Philip Carey's Plymouth Meeting manufacturing plant;

(2) whether the supplier defendants — Carey-Canadian, Asbestos Corp., Johns-Manville, NAAC and Bell Asbestos — were liable because they supplied asbestos fiber, without a warning of the dangers of asbestos exposure to the manufacturing plant, which proximately caused plaintiffs' injuries;

(3) whether Celotex was liable because Philip Carey intentionally failed to warn its former employees that they might have acquired an asbestos-related disease when Philip Carey officials had been advised by Dr. Thomas F. Mancuso, in October, 1963, that its former employees should be informed of this danger; and

(4) whether the conduct of Philip Carey, whether negligent or intentional in failing to warn, was a superseding cause for any injuries sustained by plaintiffs after October 1, 1963.³

The liability trial, which was the first multi-plaintiff asbestos case tried in this district, lasted twenty-nine trial days, during which thirty-eight live witnesses testified, ten depositions were read, and over one hundred exhibits were presented to the jury. Following two and one-half days of deliberation, the jury returned its liability verdict which can be summarized as follows:

(1) all of the claims except that of George Neal were not barred by the Pennsylvania statute of limitations;

(2) all of the supplier defendants, except Bell Asbestos, were liable under § 402A products liability and negligence principles for the asbestos-related diseases suffered by each plaintiff;

(3) Celotex was liable for the aggravation of each plaintiff's injuries because of its intentional failure to warn;

(4) Celotex and Johns-Manville were additionally liable for punitive damages because of their outrageous conduct; and

(5) Celotex's conduct was not a superseding cause of each plaintiff's injuries suffered after October 1, 1963.

Following the liability verdicts, individual damage trials were held which lasted a sum total of twenty-five trial dates during which individual damage verdicts were rendered for each plaintiff. The actual compensatory and punitive damages awarded by the jury for each individual plaintiff in the order in which the cases were presented is summarized in the chart in footnote 4.⁴

548 F. Supp. 367

II. Motions for Judgment N. O. V. by All Defendants — Statute of Limitations

The Pennsylvania statute of limitations, 42 Pa.C.S.A. § 5524 provides in pertinent part:

§ 5524. Two year limitation

The following actions and proceedings must be commenced within two years:

. . . . .

(2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.

. . . . .

With respect to injuries or disease for which the causes are not readily apparent, the statute of limitations does not begin to run against the prospective plaintiff until such time that plaintiff either knew or had reason to know of the injury, the operative cause of the injury, and the causal relationship between the injury and the operative conduct. Anthony v. Koppers, Co. Inc., 284 Pa.Super. 81, 425 A.2d 428, 436 (1980) (quoting Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.C.P.1980)). See Bayless v. Philadelphia National League Club, 579 F.2d 37, 39 (3d Cir. 1978).

This so-called "discovery rule" has been applied in asbestos cases. Volpe v. Johns-Manville Corp., 4 P.C.R. 290 (Phila.C. P.1980) (Takiff, J.); DeMato v. Turner & Newall, Ltd., 651 F.2d 908, 909 (3d Cir. 1981); Grabowski v. Turner & Newall, 516 F.Supp. 114, 118-119 (E.D.Pa.1980). A statute of limitations is an affirmative defense for which the defendant has the burden of proof. See Fed.R.Civ.P. 8(c). Before a Court can direct a verdict in favor of the moving party, it must find that the evidence was overwhelming and that there is insufficient evidence to permit any different finding in favor of the non-moving party. Fireman's Fund Ins. Co. v. Videfreeze Corp., 540 F.2d 1171, 1177 (3d Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977).

(A) Edward Hojnacki

Defendants assert that there is overwhelming evidence in the record that Edward Hojnacki knew of his asbestos-related condition, the operative cause, and the causal relationship prior to November 28, 1976. Defendants cite the testimony of Dr. Eugene Labowski, Mr. Hojnacki's former treating physician, as...