Rocco v. Johns-Manville Corp., JOHNS-MANVILLE

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS, GIBBONS, and WEIS; WEIS; GIBBONS
Citation754 F.2d 110
PartiesJohn P. ROCCO and Antoinette Rocco, his wife, Appellants in 83-1043, v.CORP.; Johns-Manville Sales Corporation; Raybestos-Manhattan, Inc.; Owens-Corning Fiberglass Corporation; Owens-Illinois Glass Company; Pittsburgh Corning Corporation; GAF Corporation; Celotex Corporation; Unarco Industries, Inc.; H.K. Porter Co., Inc.; Southern Asbestos Company; Eagle- Pitcher Industries, Inc.; Amatex Corporation; Pacor, Inc.; Keene Corporation; Garlock, Inc.; Glen Alden, Inc.; Rapid American Corporation, Inc. v.MANUFACTURING CO., INC.; Certain Teed Corp.; Forty-Eight Insulators, Inc.; Fibreboard Corporation; Nicolet Industries. Appeal of PITTSBURGH CORNING CORP., in 83-1044.
Decision Date11 April 1985
Docket NumberJOHNS-MANVILLE,Nos. 83-1043,ASTEN-HILL,83-1044

Page 110

754 F.2d 110
John P. ROCCO and Antoinette Rocco, his wife, Appellants in 83-1043,
v.
JOHNS-MANVILLE CORP.; Johns-Manville Sales Corporation;
Raybestos-Manhattan, Inc.; Owens-Corning Fiberglass
Corporation; Owens-Illinois Glass Company; Pittsburgh
Corning Corporation; GAF Corporation; Celotex Corporation;
Unarco Industries, Inc.; H.K. Porter Co., Inc.; Southern
Asbestos Company; Eagle- Pitcher Industries, Inc.; Amatex
Corporation; Pacor, Inc.; Keene Corporation; Garlock,
Inc.; Glen Alden, Inc.; Rapid American Corporation, Inc.
v.
ASTEN-HILL MANUFACTURING CO., INC.; Certain Teed Corp.;
Forty-Eight Insulators, Inc.; Fibreboard
Corporation; Nicolet Industries.
Appeal of PITTSBURGH CORNING CORP., in 83-1044.
Nos. 83-1043, 83-1044.
United States Court of Appeals,
Third Circuit.
Argued Nov. 15, 1984.
Decided Jan. 25, 1985.
Rehearing and Rehearing En Banc Denied March 1 and April 11, 1985.

Page 111

Marc P. Weingarten (argued), Michael J. Witt, Greitzer & Locks, Philadelphia, Pa., for appellants John and Antoinette Rocco.

John A. Fitzpatrick (argued), Joseph P. Ryan, Edward J. David, Curran, Mylotte, David & Fitzpatrick, Philadelphia, Pa., for appellant Pittsburgh Corning Corp.

Before ADAMS, GIBBONS, and WEIS, Circuit Judges.

OPINION OF THE COURT

WEIS, Circuit Judge.

This asbestos diversity case presents several issues under the Pennsylvania Joint Tortfeasors Act. We hold that payments made to plaintiffs by defendants who are not determined to be joint tortfeasors do not diminish the damages plaintiffs are entitled to recover. However, a release in favor of a joint tortfeasor who files a petition in bankruptcy before paying the agreed settlement amount does act to reduce the plaintiffs' verdict pro rata. We hold further that Pennsylvania delay damages may be assessed against a non-settling defendant only on its pro rata share of a verdict. Because claims against a potential joint tortfeasor remain open in the district court we will affirm in part and remand.

The plaintiffs' complaint named eighteen defendants. At various times, up until closing argument to the jury, settlements were reached with a number of them. Plaintiffs went to the jury on their claims against defendants Pittsburgh Corning and Johns-Manville, recovering verdicts against both. The jury also determined that six of the settling defendants contributed to the plaintiffs' injuries.

Page 112

After denying post-trial motions for judgment n.o.v. and new trial, the district court reduced the verdicts because of pro rata releases executed by plaintiffs and added delay damages as provided by Pennsylvania state practice. Plaintiffs and defendant, Pittsburgh Corning, have appealed.

Plaintiff John Rocco was employed at the New York and the Philadelphia Naval shipyards from 1943 to 1981. During that time, he was exposed to asbestos products and dust which led to asbestosis. The complaint against the defendants, manufacturers and suppliers of asbestos products, asserted a claim for damages based on strict liability, specifically failure to warn. Some of the defendants filed cross-claims and third-party actions against other manufacturers. At some point before trial, the plaintiffs' claims and defense cross-claims against Keene Corporation, one of the original defendants, were severed and assigned to another judge for disposition. 1

Before the case reached the jury, plaintiffs settled with most of the defendants and signed pro rata releases. Because differing releases and procedures were used, the legal effect to be given these settlements varies.

The jurors determined that the conduct of Johns-Manville and Pittsburgh Corning was a proximate cause of the plaintiffs' injuries and awarded $500,000 to John Rocco and $50,000 to his wife Antoinette. In answering special interrogatories submitted in conjunction with the defendants' cross-claims, the jury found that six of the settling defendants had also proximately caused the plaintiffs' injury. The defendants in that category will be referred to hereafter as Group C. The jurors were not told that other companies, designated here as Group A and B, had been defendants and that they too had settled.

The post-trial proceedings were complex. Johns-Manville and Pittsburgh Corning moved for judgments n.o.v. and new trial based on insufficiency of the evidence and excessiveness of the verdicts. Plaintiffs filed motions for directed verdict nunc pro tunc and for judgment n.o.v. on behalf of three of the Group C cross-claim defendants, alleging that there was insufficient evidence to support the jury's findings against them. Plaintiffs also moved to add delay damages to the verdict, pursuant to Pennsylvania Rule of Civil Procedure 238. Johns-Manville and Pittsburgh Corning moved to mold the verdict because plaintiffs had signed pro rata releases that would reduce the amount of the verdicts.

On September 9, 1982, the district court filed an opinion and order denying the motions for judgment n.o.v. and new trial. The motions to mold the verdicts were granted in part and denied in part. As part of the order, plaintiffs were directed to furnish the court with the amounts paid by the Group C defendants for the pro rata releases. The plaintiffs' motion to add delay damages was granted, but entry of the amounts due was reserved until the court modified the verdicts. Johns-Manville and Pittsburgh Corning both appealed the September order. 2 Later, the district court conducted a hearing and on December 15, 1982, filed another memorandum and order. The court computed the delay damages at 10 percent per year on John and Antoinette Rocco's awards. The court then proceeded to reduce the verdicts by giving effect to the various settlements.

The court divided the settling defendants into three categories. Group A was composed of eight defendants who had paid a total of $47,500. 3 The culpability of these

Page 113

defendants had not been submitted to the jury, and the releases signed by plaintiffs did not acknowledge these defendants to be joint tortfeasors. However, the court decided that "on principles of equity and fairness," the amount paid by the Group A defendants should be deducted from the verdicts to prevent double recovery by plaintiffs.

Group B was composed of one defendant, Owens Corning Fiberglass. It was acknowledged to be a joint tortfeasor by the terms of a release signed by plaintiffs and reciting a consideration of $25,000.

The third group was the Class C defendants--those who were adjudicated joint tortfeasors by the jury. The six companies in this group had paid a total of $65,750. 4

After classifying the settling defendants, the district court concluded that there were nine joint tortfeasors; Johns-Manville, Pittsburgh Corning, and the Group B and C defendants. That being so, the court held that a pro rata share of each defendant was one-ninth. Accordingly, Johns-Manville and Pittsburgh Corning were jointly and severally liable for two-ninths of the total verdict.

After performing the various calculations, the court entered judgment in favor of plaintiff John Rocco against Johns-Manville and Pittsburgh Corning, jointly and severally in the amount of $127,482.63. Judgment was entered in favor of Antoinette in the amount of $12,747.21. 5 The plaintiffs' claims against the remaining defendants, with the exception of the severed count against Keene Corporation, were dismissed.

Plaintiffs and Pittsburgh Corning appealed the December judgment but Johns-Manville did not. After the appeals had been taken, the parties secured an order from the district court, stating that the December order was final as to all parties except Keene Corporation. Therefore, only the appeals of plaintiffs and Pittsburgh Corning from the December order are currently before us. Even though obtained after the appeal had been filed, the 54(b) certification permits us to reach the merits of these appeals. See Feather v. United Mine Workers of America, 711 F.2d 530 (3d Cir.1983); Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir.1983); Tilden Financial Corporation v. Palo Tire Service, Inc., 596 F.2d 604 (3d Cir.1979).

I.

The district court concluded that sufficient evidence supported the jury's finding that asbestos manufactured by Pittsburgh Corning was a factor causing the plaintiffs' injury. Although the evidence was not overwhelming, there was enough for the jury to find that Unibestos, a product manufactured by Pittsburgh Corning, was used at the shipyards where plaintiff had worked. Several witnesses testified that the product was manufactured by Pittsburgh Corning and had been observed at the job sites. We find no reversible error in the admission of this evidence or in the denial of the Pittsburgh Corning's motions for a new trial and judgment n.o.v. on the ground of insufficient evidence.

The verdict in this case was very generous, but the district court did not find

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it so excessive as to shock the conscience of the court. Our scope of review is narrow, and we must affirm the jury's damage award unless it is "so grossly excessive as to shock the judicial conscience." Black v. Stephens, 662 F.2d 181 (3d Cir.1981), cert. denied, 455 U.S. 1008, 102 S.Ct. 1646, 71 L.Ed.2d 876 (1982); Edynak v. Atlantic Shipping, Inc., 562 F.2d 215 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978). On this record we cannot say that the district court abused its discretion in the denial of Pittsburgh Corning's motion for a new trial. See Thomas v. E.J. Korvette, Inc., 476 F.2d 471 (3d Cir.1973).

The plaintiffs' contention that the district court should have permitted them to prevail on the motion for a directed verdict nunc pro tunc on behalf of several of the Class C defendants must also be rejected. The district court noted that an affected party must file a motion for a directed verdict at the close of all the evidence as a prerequisite to consideration of a motion for judgment...

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37 practice notes
  • U.S. v. Union Corp., No. CIV.A.9-01589.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • June 20, 2003
    ...of contribution and applies "if it is established that those allegedly culpable are joint tortfeasors." Rocco v. Johns-Manville Corp., 754 F.2d 110, 115 (3d Cir.1985); Whitehill v. Anderson, 1995 WL 870785, 27 Pa. D. & C. 4th 47 (Pa.Com.Pl.1995). The Act defines joint tortfeasors as "two or......
  • Carr v. American Red Cross, Nos. 93-1392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 4, 1994
    ...total claim shall be reduced if greater than the consideration paid. Id. at Sec. 8326. As we recognized in Rocco v. Johns-Manville Corp., 754 F.2d 110 (3d Cir.1985), "for the Act to apply, it is necessary to establish that those allegedly culpable are joint tortfeasors." Id. at Consequently......
  • Owens-Illinois v. Gianotti, No. 2644
    • United States
    • Court of Special Appeals of Maryland
    • October 30, 2002
    ...whether a non-settling defendant is entitled to a pro-rata reduction of a jury verdict under the UCATA. See Rocco v. Johns-Manville Corp., 754 F.2d 110, 111 (3d Cir.1985) ("[A] release in favor of a joint tortfeasor who files a petition in bankruptcy before paying the agreed settlement amou......
  • Menne v. Celotex Corp., No. 86-2350
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 28, 1988
    ...on it created prima facie case of exposure where evidence was presented that asbestos dust "drifted"); Rocco v. Johns-Manville Corp., 754 F.2d 110, 113 (3d Cir.1985) (evidence of general use of Pittsburgh Corning's Unibestos at job site was sufficient to allow jury to find Pittsburgh Cornin......
  • Request a trial to view additional results
37 cases
  • U.S. v. Union Corp., No. CIV.A.9-01589.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • June 20, 2003
    ...of contribution and applies "if it is established that those allegedly culpable are joint tortfeasors." Rocco v. Johns-Manville Corp., 754 F.2d 110, 115 (3d Cir.1985); Whitehill v. Anderson, 1995 WL 870785, 27 Pa. D. & C. 4th 47 (Pa.Com.Pl.1995). The Act defines joint tortfeasors as "two or......
  • Carr v. American Red Cross, Nos. 93-1392
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 4, 1994
    ...total claim shall be reduced if greater than the consideration paid. Id. at Sec. 8326. As we recognized in Rocco v. Johns-Manville Corp., 754 F.2d 110 (3d Cir.1985), "for the Act to apply, it is necessary to establish that those allegedly culpable are joint tortfeasors." Id. at Consequently......
  • Owens-Illinois v. Gianotti, No. 2644
    • United States
    • Court of Special Appeals of Maryland
    • October 30, 2002
    ...whether a non-settling defendant is entitled to a pro-rata reduction of a jury verdict under the UCATA. See Rocco v. Johns-Manville Corp., 754 F.2d 110, 111 (3d Cir.1985) ("[A] release in favor of a joint tortfeasor who files a petition in bankruptcy before paying the agreed settlement amou......
  • Menne v. Celotex Corp., No. 86-2350
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 28, 1988
    ...on it created prima facie case of exposure where evidence was presented that asbestos dust "drifted"); Rocco v. Johns-Manville Corp., 754 F.2d 110, 113 (3d Cir.1985) (evidence of general use of Pittsburgh Corning's Unibestos at job site was sufficient to allow jury to find Pittsburgh Cornin......
  • Request a trial to view additional results

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