OWENS-CORNING FIBERGLAS CORP. v. HENKEL

• Decision Date: 06 March 1997
• Docket Number: No. 94-CV-665,No. 94-CV-658,No. 94-CV-664,94-CV-658,94-CV-664,94-CV-665
• Citation: 689 A.2d 1224
• Parties: OWENS-CORNING FIBERGLAS CORPORATION, Appellant, v. Paul D. HENKEL, et al., Appellees.
• Court: D.C. Court of Appeals

689 A.2d 1224

OWENS-CORNING FIBERGLAS CORPORATION, Appellant, v. Paul D. HENKEL, etal., Appellees.

Nos. 94-CV-658, 94-CV-664 and 94-CV-665.

District of Columbia Court of Appeals.

Argued October 17, 1996.

Decided March 6, 1997.

APPEAL FROM THE SUPERIOR COURT, RICHARD A. LEVIE, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Mark A. Perry, with whom Larry L. Simms, Washington, was on the brief, for appellant.

Gary Ignatowski, Baltimore, MD, with whom Edward J. Lilly, New York City and Ronald E. Richardson, Washington, were on the brief, for appellees.

Before SCHWELB, FARRELL and REID, Associate Judges.

SCHWELB, Associate Judge:

These consolidated appeals arise from actions to recover damages for personal injuries allegedly resulting from asbestos exposure. The three male plaintiffs¹ sued Owens-Corning Fiberglas Corporation (OCF) and several other manufacturers and distributors of asbestos products,² each plaintiff claiming that he had contracted asbestosis or cancer from his occupational exposure to asbestos. The male plaintiffs' wives³ sued for damages for loss of consortium. Following a lengthy trial which was presented in three phases over a period of several months during the summer and fall of 1992, the jury awarded the plaintiffs a total of $15.5 million in compensatory damages. That amount was subsequently remitted by the trial judge to approximately $13 million.

On appeal, OCF contends that the trial judge erred by rejecting its claim that the plaintiffs exercised their peremptory challenges during jury selection in a racially discriminatory manner. OCF also challenges the admission, over objection, of certain "state-of-the-art" evidence tending to show that the dangerous characteristics of asbestos were known to the scientific community as early as the 1940's. Finally, OCF claims that the Henkels' action is time-barred. We affirm.

I. THE "BATSON"⁴ CLAIM

OCF asserted in the trial court that counsel for the plaintiffs engaged in racial discriminationin the exercise of his peremptory challenges. The trial judge found no discrimination because "plaintiffs' counsel has articulated a neutral explanation with respect to each of the four jurors . . . against [whom] plaintiffs exercised their peremptory strikes," and because the judge credited counsel's explanations. On appeal, OCF claims that in light of certain statistical and other evidence, the judge should have rejected as pretextual the ostensibly nondiscriminatory justifications which plaintiffs' attorney provided for the strikes. We do not reach the merits of the issue, however, for OCF's objection was untimely, and we conclude that it was waived.

The jury was selected on July 1, 1992. During voir dire, counsel for OCF interposed no objection to any of the plaintiffs' peremptory challenges. After the jury had been selected, OCF's attorney immediately turned to procedural issues relating to his adversary's opening statement, and he said nothing at all about Batson or about alleged racial discrimination in the selection of the jury. By failing to raise any objection, OCF thus indicated, albeit passively, that it was satisfied with the jury. Accordingly, the jurors were sworn, and the plaintiffs' attorney presented his opening statement. At the conclusion of the opening statement, the jurors were dismissed for the day.

On the following morning, OCF's attorney, in lieu of proceeding with his opening statement, claimed for the first time that the plaintiffs had stricken prospective white jurors⁵ because of race. The plaintiffs argued to the trial judge, and continue to maintain on appeal, that this objection was untimely and that it should have been made before the jury was sworn and seated. We agree.

In Batson, the Supreme Court explicitly contemplated that any valid objection based on racial discrimination in the exercise of peremptory challenges must be seasonably presented. 476 U.S. at 99, 106 S.Ct. at 1724-25. The defendant's motion to discharge the jury had been made at the conclusion of voir dire, but before the jury was sworn, id. at 89, 106 S.Ct. at 1719, and the Court described that objection as "timely." Id. at 100, 106 S.Ct. at 1725. The Court did not, however, identify the precise stage of the proceedings at which a litigant must raise this type of objection.

This court first addressed a question as to the timeliness of a Batson motion in Tursio v. United States, 634 A.2d 1205 (D.C. 1993). In Tursio, we held, in conformity with Batson itself, that the defendant's Batson motion was timely because it was made before the jury was sworn. Id. at 1209-10. Although we were not presented with the question whether the motion would have been untimely if it had been made after the jury was sworn, we cited with apparent approval a number of cases from other jurisdictions which answered that question in the affirmative. Id. (citations omitted). We also stated that "[i]t is preferable for counsel to object as soon as a discriminatory pattern emerges. . . ." Id. at 1210.

We have come very close, since Tursio, to ruling definitively that a Batson claim must be presented before the administration of the oath to the jurors. In Baxter v. United States, 640 A.2d 714 (D.C. 1994), on the authority of Tursio, we sustained the timeliness of an objection which was made after voir dire had been completed but before the jury was sworn. Id. at 717 n. 3. In so ruling, however, we reiterated "the importance, in cases of this kind, of alerting the judge to the issue as soon as a pattern allegedly emerges, so that a meaningful record can be made." Id. More recently, in Safeway Stores v. Buckmon, 652 A.2d 597 (D.C. 1994), a case in which a Batson objection was first raised after the jury was sworn, we stated that "a trial court ruling of untimeliness would seem appropriate in light of the difficulties presented in a delayed consideration of a Batson challenge."⁶ Read together and in sequence, these decisions strongly imply, at the very least, that an objection interposed after the jury has been sworn comes too late.

The obvious trend in our cases is consistent with the case law elsewhere. "The [Georgia] requirement that any Batson claim be raised not only before trial, but in the period between the selection of the jurors and the administration of their oaths, is a sensible rule." Ford v. Georgia, 498 U.S. 411, 422, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991). "The appropriate time for [a Batson] motion is prior to the acceptance and swearing in of the jury." State v. Peck, 719 S.W.2d 553, 555 (Tenn.Cr.App. 1986). "[A]n objection occurring after the jury is sworn [cannot] be deemed timely." People v. Evans, 125 Ill.2d 50, 125 Ill.Dec. 790, 794, 530 N.E.2d 1360, 1364 (1988). Where, as here, a party has failed to make any objection at the close of voir dire, that party has waived any Batson claim. Government of Virgin Islands v. Forte, 806 F.2d 73, 76 (3d Cir. 1986).

Several courts have held that a Batson objection "must be made, at the latest, before the venire is dismissed and before the trial commences." See, e.g., United States v. Parham, 16 F.3d 844, 847 (8th Cir. 1994) (emphasis added); United States v. Maseratti, 1 F.3d 330, 335 (5th Cir. 1993);⁷ United States v. Romero-Reyna, 867 F.2d 834, 837 (5th Cir. 1989), cert denied, 494 U.S. 1084, 110 S.Ct. 1818, 108 L.Ed.2d 948 (1990). These cases make eminent sense, for once the members of the venire have been released, the court is effectively precluded from re-seating any individual who has been peremptorily challenged on the basis of race or sex. See, e.g., Epps v. United States, 683 A.2d 749, 753-55 (D.C. 1996) (affirming trial court's reinstatement of two prospective jurors who had been stricken in violation of Batson). A party should not be permitted to delay its Batson objection until it is too late to cure any violation without beginning the jury selection process all over again.

In the present case, after the conclusion of voir dire, counsel for OCF made no allegation that Batson had been violated. He turned, instead, to issues unrelated to jury selection. He thus represented to the court, at least implicitly, that he was satisfied with the jury as seated. The jurors were sworn, and the trial proceeded with the opening statement on behalf of the plaintiffs. "After a party has assured the court that the jury as empaneled is acceptable, the party will not be heard to complain of the make-up of the jury panel." Evans, supra, 125 Ill. Dec. at 794, 530 N.E.2d at 1364 (quoting Peck, supra, 719 S.W.2d at 555).

The practicalities of the situation also cry out for judicial insistence on timeliness. Where, as in this case, a party claiming a Batson violation is silent during voir dire and complains only after the venire has been dismissed and the jury has been sworn, it becomes difficult (if not impossible) for the court and counsel to recreate in their minds the circumstances of each strike. It is not easy for an attorney charged with a Batson violation to defend a peremptory challenge if he or she can no longer remember the person challenged or the individuals seated in the jury box at the time. Delay likewise impairs the judge's ability to make an informed assessment of counsel's reasons for his or her strikes. A prompt objection is therefore essential if a Batson issue is to be addressed in an effective and meaningful manner.⁸ Accordingly, we conclude that OCF waived its Batson claim.⁹

II.

"STATE-OF-THE-ART"

OCF argues that the judgment in this case should be reversed because certain "state-of-the-art" evidence was erroneously admitted over its objection. The contested evidence included the deposition of the late Dr. Kenneth Smith, a former medical director of Johns-Manville Corporation, a major manufacturer of asbestos, as well as certain other materials. This evidence was admitted to show that the medical and scientific...