Petersen v. Chesapeake and Ohio Ry. Co.

• Decision Date: 21 February 1986
• Docket Number: 84-1598,Nos. 84-1557,JOHNS-MANVILLE,s. 84-1557
• Parties: Frederick F. PETERSEN, deceased, and Mary Jane Petersen, individually and as Administratrix of the Estate of Frederick F. Petersen, Plaintiffs-Appellees, Cross-Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant, Cross-Appellee, andSALES CORPORATION, Third-Party Plaintiff, v. ARMSTRONG CORK COMPANY, the Celotex Corporation, Owens-Corning Fiberglas Corporation, Owens-Illinois Glass Company, Eagle-Picher Industries, Inc., and Garlock, Inc., Third- Party Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 732

784 F.2d 732

1987 A.M.C. 769

Frederick F. PETERSEN, deceased, and Mary Jane Petersen,

individually and as Administratrix of the Estate

of Frederick F. Petersen, Plaintiffs-Appellees, Cross-Appellants, v. The CHESAPEAKE AND OHIO RAILWAY COMPANY, Defendant-Appellant, Cross-Appellee, and JOHNS-MANVILLE SALES CORPORATION, Third-Party Plaintiff, v. ARMSTRONG CORK COMPANY, the Celotex Corporation,

Owens-Corning Fiberglas Corporation,

Owens-Illinois Glass Company,

Eagle-Picher Industries, Inc.,

and Garlock, Inc.,

Third-

Party Defendants.

Nos. 84-1557, 84-1598.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 28, 1985.

Decided Feb. 21, 1986.

W. Fred Hunting, Jr., argued, David M. Thompson, Law, Weathers & Richardson, Grand Rapids, Mich., for defendant-appellant, cross-appellee.

J. Walter Brock, argued, McCroskey, Feldman, Cochrane & Brock, Muskegon, Mich., for plaintiffs-appellees, cross-appellants.

Charles F. Behler, Smith, Haughey, Rice & Roegge, Grand Rapids, Mich., for Armstrong Cork Co.

Ronald E. Wagner, Kitch, Suhreheinrich, Smith, Saurbier & Drutchas, Detroit, Mich., for Owens-Corning Fiberglas Corp.

William K. Holmes, Warner, Norcross & Judd, Grand Rapids, Mich., for Owens-Illinois Glass Co.

Bruce M. Bieneman, Cholette, Perkins & Buchanan, Grand Rapids, Mich., for other third-party defendants.

Before KEITH and MILBURN, Circuit Judges, and HIGGINS, District Judge ^*.

MILBURN, Circuit Judge.

Defendant Chesapeake and Ohio Railway Company (C & O) appeals from a judgment in the amount of $235,500.00 entered on a jury verdict in this action arising from plaintiff's intestate's exposure to asbestos fibers while employed aboard the C & O's car ferries operating on the Great Lakes. Plaintiff, the Administratrix of the Estate of Frederick F. Petersen, deceased, sought recovery under general maritime law and under the Jones Act, 46 U.S.C. Sec. 688. 582 F.Supp. 1581. Plaintiff cross-appeals from the district court's denial of prejudgment interest. For the reasons that follow, we affirm.

I.

Frederick F. Petersen began work for defendant C & O on May 26, 1941, and retired from C & O on May 26, 1978. His initial job was as a member of the crew of defendant C & O's car ferries, and he continued as a member of the car ferry crew until late 1950 when he took a position as a machinist in the marine shop. Although his position as a machinist was land based, Petersen continued to perform almost all of his duties on board the car ferries, and it is undisputed that his work required him to repair equipment and machinery while the car ferries were sailing between ports on the Great Lakes. As Petersen gained seniority in his position as a machinist, he was able to select work assignments which permitted him to repair most of the vessels in dry dock. However, there was proof introduced at the trial that Petersen continued to spend approximately thirty percent (30%) of his work time in sailing time while repairing the car ferry engines.

Petersen was exposed to asbestos products in different fashions, at different times, with different apparent levels of intensity of exposure, commencing in 1941 and continuing until the mid-1970's when asbestos products were no longer used by defendant C & O with reference to its Great Lakes operations. His exposure to asbestos was in replacing asbestos insulation covering pipes and equipment. Frederick F. Petersen died on June 26, 1979, as a result of lung difficulties related to his asbestos exposure.

Prior to his death, Petersen instituted this action against defendant C & O alleging that he was a seaman at the time of his injuries and was, therefore, entitled to the remedies provided for under the Jones Act, 46 U.S.C. Sec. 688. Petersen also asserted an unseaworthiness claim and a claim for wages, maintenance and cure under general maritime law. ¹ Following Petersen's death, Mrs. Petersen, as administratrix of her husband's estate, was substituted for him as a party plaintiff. In the action filed by her husband, Mrs. Petersen asserted claims in her individual capacity for loss of society and companionship. However, during the course of the trial, the claims of Mrs. Petersen in her individual capacity and the claims for wages, maintenance and cure were voluntarily dismissed.

C & O argued in the district court and now argues that the sole basis for jurisdiction for any and all claims on behalf of the decedent was the workers' compensation program provided by the Longshoremen's and Harborworkers' Compensation Act ("the LHWCA"), 33 U.S.C. Sec. 901, et seq. The district court held that there was sufficient indicia of decedent's status as a Jones Act seaman at the time of his injury to raise factual questions for the jury to determine, and noted that plaintiff's complaint contained sufficient allegations to invoke the district court's jurisdiction under 28 U.S.C. Sec. 1331, federal question jurisdiction; 28 U.S.C. Sec. 1332, diversity jurisdiction; and 28 U.S.C. Sec. 1333, admiralty and maritime jurisdiction.

Additionally, C & O moved the district court to preclude introduction of evidence concerning decedent's exposure to asbestos prior to January 24, 1976, and, further, to exclude all evidence of decedent's employment status prior to January 24, 1976, contending that the evidence would be barred by the three-year statute of limitations under the Jones Act. These motions were overruled by the district court.

During the course of the trial, C & O moved for a mistrial alleging that introduction of the following testimony constituted reversible error.

Q. [By plaintiff's counsel] How long has the disease asbestosis been well-known in the medical literature?

A. [By Dr. Vernon Dodson] Well, it wasn't generally recognized as a disease until certain individuals had been aware of association between asbestos exposure and lung disease in the early part of the century. But certainly by the 1920s it was a well-recognized entity and, indeed, our own Dr. Carey P. McCord at the University of Michigan, former doctor of medicine at the Chrysler Company, had written extensively in the 1920s. He also belonged to an exclusive organization known as the Railroad Occupational and Medical Directors Association and at those meetings had discussed this widely.

* * *

* * *

Q. [By counsel for C & O] And did you make any studies to determine whether there has been any other documented cases of asbestosis among C & O workers in Ludington?

A. [By Dr. Vernon Dodson] What I have done is to review the information that was given to me. Mr. Brock has indicated that there are two other employees who have had lung diseases resembling asbestosis who worked with this man.

Counsel for C & O objected to the first question as an attempt to use the expert's qualifications to show that C & O should have known of the medical consequences of asbestos exposure in the 1920's. The district judge subsequently instructed the jury to disregard Dr. Dodson's testimony regarding the medical conference in the 1920's and his testimony concerning other incidents of asbestos-related injuries among C & O workers.

At the close of plaintiff's proof and at the end of all proof, C & O entered motions for directed verdicts as to all issues. These motions were overruled, and the jury found for plaintiff. The jury verdict form submitted to the jury required it to answer the following special interrogatory: "Was Mr. Petersen a seaman at the time he was exposed to asbestos and did that exposure while a seaman cause asbestosis?" The jury answered in the affirmative. Following the jury verdict, the district court overruled C & O's motion for judgment n.o.v. Plaintiff's motion for prejudgment interest was likewise overruled.

II. DEFENDANT'S APPEAL

A. Subject Matter Jurisdiction

C & O contends that the district court was without subject matter jurisdiction to entertain the instant action. C & O's argument rests on the proposition that admiralty jurisdiction is improper, as a matter of law, where a maritime worker suffers an asbestos-related injury. Invocation of admiralty jurisdiction in cases involving maritime torts requires that the tort take place on navigable waters and that the tort arise in the course of traditional maritime activities. See Foremost Insurance Co. v. Richardson, 457 U.S. 668, 675, 102 S.Ct. 2654, 2658, 72 L.Ed.2d 300 (1982). See also Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). Other Courts of Appeals have held that admiralty jurisdiction does not extend to asbestos-related claims by land-based ship repair or construction workers because the claims bear no significant relationship to traditional maritime activities. See Oman v. Johns-Manville Corp., 764 F.2d 224 (4th Cir.1985); Woessner v. Johns-Manville Sales Corp., 757 F.2d 634 (5th Cir.1985); Myhran v. Johns-Manville Corp., 741 F.2d 1119 (9th Cir.1984); Harville v. Johns-Manville Products Corp., 731 F.2d 775 (11th Cir.1984); Keene Corp. v. United States, 700 F.2d 836 (2d Cir.1983), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983); Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983). These courts concluded that because the tasks performed and injuries incurred by the involved workers were identical to those of asbestos workers who have never stepped aboard a vessel, the litigation presented issues of tort law traditionally committed to local resolution and did not require development or application of uniform federal maritime law. Oman, 764 F.2d at 231; Woessner, 757 F.2d at 648; Myhran, 741 F.2d at 1122; Harville, 731 F.2d at 785; Owens-Illinois, 698 F.2d at 970-71. We concur in these decisions and hold that, given the rationale of the above decisions, the decedent's complaint in the instant case was insufficient to invoke the district court's admiralty jurisdiction.

However, our determination that the district court could not exercise...