Ottavio v. Fibreboard Corp.

• Decision Date: 16 December 1992
• Citation: 617 A.2d 1296,421 Pa.Super. 284
• Parties: Elmer OTTAVIO and Anna Ottavio, H/W, Appellees v. FIBREBOARD CORP., PACOR, Inc., Johns-Manville Corp., Eagle Picher Industries, Keene Corp., Raybestos-Manhattan, Celotex Corp., Southern Textile Corp., J.P. Stevens Co., Garlock, Inc., Owens-Illinois Glass, GAF Corp. Appeal of FIBREBOARD CORPORATION.
• Court: Pennsylvania Superior Court

Page 1296

617 A.2d 1296

421 Pa.Super. 284

Elmer OTTAVIO and Anna Ottavio, H/W, Appellees v. FIBREBOARD CORP., PACOR, Inc., Johns-Manville Corp., Eagle Picher Industries, Keene Corp., Raybestos-Manhattan, Celotex Corp., Southern Textile Corp., J.P. Stevens Co., Garlock Inc., Owens-Illinois Glass, GAF Corp Appeal of FIBREBOARD CORPORATION.

Superior Court of Pennsylvania.

Argued May 1, 1992.

Filed Dec. 16, 1992.

R.T. Wentley, Pittsburgh, for appellant.

Steven J. Cooperstein, Philadelphia, for Ottavio, appellee.

Before ROWLEY, President Judge, and WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK, TAMILIA, KELLY and JOHNSON, JJ.

OPINION PER CURIAM:

Elmer Ottavio filed an action against numerous manufacturers of asbestos products to recover for injuries allegedly sustained as a result of workplace exposure to asbestos during his employment at the Philadelphia Navy Yard, where he had worked for a period of forty (40) years, first as a sheetmetal worker and later as a designer. In a "reverse bifurcated" proceeding, Ottavio sought damages for pleural thickening and a fear of developing future diseases, including cancer, allegedly caused by exposure to asbestos. A jury awarded damages to Ottavio in the amount of one hundred fifty thousand ($150,000) dollars. The claims against most defendants named in the action were thereafter settled. Fibreboard Corporation, however, did not settle Ottavio's claim and proceeded to trial on the issue of liability. ¹ The jury found that Fibreboard and twelve (12) other non-bankrupt manufacturers of asbestos had contributed to Ottavio's injuries. Post-trial motions were denied, and judgment was entered against Fibreboard in the amount of $18,795. On appeal, Fibreboard contends that the evidence was insufficient to support the jury's verdict and that the trial court committed numerous errors. We will review these contentions seriatim.

I. Sufficiency of the Evidence

"In reviewing the sufficiency of the evidence to support the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences." Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991), citing Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988), allocatur denied, 522 Pa. 619, 563 A.2d 888 (1989). See also: Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980); Lopa v. McGee, 373 Pa.Super. 85, 540 A.2d 311 (1988); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984), affirmed, 511 Pa. 402, 515 A.2d 517 (1986); Reichman v. Wallach, 306 Pa.Super. 177, 184-185, 452 A.2d 501, 505 (1982). In order for a defendant to be held liable in a products liability action, whether under a theory of negligence or strict liability, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-191, 544 A.2d 50, 52 (1988), allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988), citing Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). See also: Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991); Bushless v. GAF Corp., 401 Pa.Super. 351, 585 A.2d 496 (1990); Bilk v. Abbotts Dairies, Inc., 147 Pa.Super. 39, 23 A.2d 342 (1941). In an asbestos action this requires that a plaintiff establish more than mere presence of asbestos in the workplace. Plaintiff must prove that he worked in the vicinity of the products' use and that, hence, he inhaled asbestos fibers shed by the product of a specific manufacturer. Lilley v. Johns-Manville Corp., supra; Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398 (1989); Eckenrod v. GAF Corp., supra, citing Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). See also: Richards v. Raymark Industries, Inc., 660 F.Supp. 599 (E.D.Pa.1987). See generally: Annotation, Products Liability: Necessity and Sufficiency of Identification of Defendant as Manufacturer or Seller of Product Alleged to Have Caused Injury, 51 A.L.R.3d 1344 (1973).

Ottavio was not able to identify the manufacturer of asbestos products to which he had been exposed. He testified, however, that he had been exposed to asbestos dust during his work on various ships. He said that he had worked as a machinist from 1947 to 1983 and that during this period he had been present in machinery spaces, firerooms, and engine rooms of ships where his proximity to the use of asbestos had caused him to be exposed to asbestos dust and fibers. In order to prove exposure to asbestos products manufactured by Fibreboard, he introduced the videotaped testimony of George Watts, a former pipecoverer and supervisor at the Philadelphia Navy Yard from 1940 to 1974. Watts had worked with or near Ottavio in machinery spaces of various ships, and he was able to identify the ships on which he had observed Ottavio working and also ships on which Fibreboard asbestos products had been used. Watts said that Ottavio could not have avoided inhaling asbestos laden dust from Fibreboard products.

This testimony, together with testimony given by John Altiere, a co-plaintiff, was sufficient to support the jury's finding that Fibreboard's asbestos products had been a substantial factor in causing Ottavio's injuries. See: Lilley v. Johns-Manville Corp., supra, citing Samarin v. GAF Corp., supra at 348, 571 A.2d at 402-403 (1979), allocatur denied, 524 Pa. 629, 574 A.2d 71 (1990). See also: Taylor v. Celotex Corp., 393 Pa.Super. 566, 581, 574 A.2d 1084, 1092 (1990), citing Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985) and Richards v. Raymark Industries, Inc., supra and Ward v. Celotex Corp., 479 So.2d 294, 296 (Fla.App.1985). It follows that the trial court did not err when it denied Fibreboard's motion for judgment n.o.v.

II. The Make-Up of the Jury

In Pennsylvania, parties to litigation have a constitutional right, under Pa.Constitution Art. I, § 6, to trial by jury in all cases in which trial by jury was a matter of right when the first state constitution was established in 1776. See: W.J. Dillner Transfer Co. v. Pennsylvania Public Utility Comm'n., 191 Pa.Super. 136, 149, 155 A.2d 429, 435 (1959); 7 Std.Pa.Prac.2d § 46:1 (1982). Civil actions at law for personal injuries are among those suits in which there is a right of trial by jury. Cf. Murphy v. Cartex Corp., 377 Pa.Super. 181, 192, 546 A.2d 1217, 1222 (1988); Brenckle v. Arblaster, 320 Pa.Super. 87, 93, 466 A.2d 1075, 1077 (1983). The general rule in Pennsylvania is that the jury to which a litigant is entitled as a matter of right is a twelve (12) person jury. This is the number established as a matter of common law practice at the time the right became constitutionally guaranteed. See: Blum v. Merrell Dow Pharmaceuticals, 385 Pa.Super. 151, 164-165, 560 A.2d 212, 219 (1989). See also: Commonwealth v. Fugmann, 330 Pa. 4, 29, 198 A. 99, 111 (1938); Smith v. Times Publishing Co., 178 Pa. 481, 498-499, 36 A. 296, 297 (1897); Wellitz v. Thomas, 122 Pa.Super. 438, 440, 185 A. 864, 865 (1936); Commonwealth v Collins, 268 Pa. 295, 299, 110 A. 738, 739 (1920). This right, however, may be waived. Therefore, a litigant is entitled to a verdict from a full twelve person jury in a civil proceeding only where the right has not been waived expressly or by implication. See: Kardibin v. Associated Hardware, 284 Pa.Super. 586, 426 A.2d 649 (1981); Warden v. Zanella, 283 Pa.Super. 137, 140, 423 A.2d 1026, 1028 (1980); Stathas v. Wade Estate, 251 Pa.Super. 269, 380 A.2d 482 (1977); Cohen v. Sykes, 180 Pa.Super. 427, 118 A.2d 208 (1955), citing Wright v. Barber, 270 Pa. 186, 113 A. 200 (1921).

In the instant case, although the defendants, including Fibreboard, initially invoked the right to a full twelve person jury, they later waived that right. Cf. Stathas v. Wade Estate, supra at 274, 380 A.2d at 484 (1977); Neely v. J.A. Young & Co., 198 Pa.Super. 196, 199, 181 A.2d 915, 916-917 (1962); Cohen v. Sykes, supra. At the time the jury was empaneled, appellant and its co-defendants acquiesced in a trial by a jury consisting of eight persons. Fibreboard did not object to the number of jurors until after one of the eight jurors became ill and was excused. At that time, Fibreboard joined in a request for a mistrial. It contended that it had not consented to a trial by less than eight jurors.

The decision in Blum v. Merrell Dow Pharmaceuticals, supra, upon which Fibreboard relies, is not applicable to the circumstances of this case. In Blum, the defendant/appellant had demanded a jury trial and a twelve member jury had been empaneled. After one juror had been excused for illness, however, the verdict had been rendered by only eleven jurors. A three judge panel of the Superior Court held that defendant/appellant, having invoked the constitutional right to trial by jury, was entitled to a decision by twelve (12) jurors. The Blum Court considered the historical significance of the language in Article I, § 6 of the Pennsylvania Constitution which states that "trial by jury shall be as heretofore...." and concluded that,

Although there is no denying that a scrutiny of the Constitutional debates, treatises on the matter and case law leave one without any ("concrete") insight as to the origin of the number 12, there is no doubt that this number was considered an essential element of a jury and was incorporated into our inviolate constitutional right of a trial by jury. See Fugmann, supra; Wellitz, supra; Collins, supra; Smith, supra.

As an "essential" feature of a trial by jury, the number 12 is implicit in the term "jury" as found in the Pennsylvania Constitution and is not subject to change except by way of a constitutional amendment, or a pronouncement of the Pennsylvania Supreme Court re-examining its initial interpretations of the "jury trial" question and altering its stance as occurred in Williams v. Florida, 399...