Rotondo v. Keene Corp.

Decision Date30 January 1992
Docket NumberNo. 91-1648,91-1648
Citation956 F.2d 436
PartiesProd.Liab.Rep. (CCH) P 13,047 Rose C. ROTONDO, Executrix of the Estate of Louis J. Rotondo, Deceased, and Rose C. Rotondo, in Her Own Right v. KEENE CORPORATION. . Submitted Under Third Circuit Rule 12(6)
CourtU.S. Court of Appeals — Third Circuit

Ronald E. Hurst, Montgomery, McCracken, Walker & Rhoads, Philadelphia, Pa., for appellant.

Michael B. Leh, Martin Greitzer, Greitzer & Locks, Philadelphia, Pa., for appellee.

Before SLOVITER, Chief Judge, MANSMANN and HUTCHINSON, Circuit Judges.


SLOVITER, Chief Judge.

On this appeal defendant Keene Corporation argues that the plaintiff, Rose Rotondo (in her own right and as executrix of the estate of her husband, Louis Rotondo), produced insufficient evidence to support the jury's verdict that Louis Rotondo's death was caused by his inhalation of asbestos fibers shed from a product manufactured by Keene's predecessor, Ehret Magnesia Company.

I. Procedural History

In 1987 Louis Rotondo (Rotondo) and his wife filed this action against Keene and several manufacturers of asbestos-containing products. On August 23, 1988, Rotondo died of mesothelioma, a cancer caused exclusively by inhalation of asbestos fibers. It is undisputed that Rotondo contracted mesothelioma as a result his exposure to asbestos fibers. It is also undisputed that Ehret manufactured pipecovering containing 15% asbestos. Prior to trial, all of the other defendants either filed for reorganization under the bankruptcy laws (Celotex Corporation, Raymark Industries, Inc., Eagle-Picher Industries, Inc.) or settled with the plaintiff (Garlock Corporation).

At the close of plaintiff's case, Keene moved for a directed verdict arguing that plaintiff failed to prove that Rotondo was exposed to Ehret pipecovering and that this exposure was a substantial contributing factor in causing his death, a motion Keene renewed at the close of its case. The district court denied both motions. The jury found for the plaintiff, awarding Rose Rotondo $275,000 as executrix of her husband's estate and $125,000 for loss of consortium. The jury also found in favor of Keene against the settling co-defendant Garlock on Keene's cross-claim for contribution, reducing the verdict by 50%. Upon plaintiff's motion, the court awarded Rose Rotondo $81,039.77 in delay damages pursuant to Pa.R.Civ.P. 238.

Keene filed a post-trial motion seeking j.n.o.v. or a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59 respectively. The district court denied the motion, and Keene appeals.

II. Standard of Review

Without question the substantive products liability law of Pennsylvania applies in this diversity action. This court applies the federal standard for judging the sufficiency of the evidence in diversity actions. See, e.g., Woods v. National Life & Acc. Ins. Co., 347 F.2d 760, 768 (3d Cir.1965) (noting, in case applying state contract law, that "[t]he federal courts have their own standard for ascertaining when a verdict should be directed"); Kinnel v. Mid-Atlantic Mausoleums, Inc, 850 F.2d 958, 961 (3d Cir.1988) (applying, without discussion, federal sufficiency of evidence test in state law contract dispute); see also 5A J. Moore & J. Lucas, Moore's Federal Practice p 50.06 (2d Ed. 1991) (noting that most circuits apply federal standard). We note, in any event that under both federal and Pennsylvania law, a court considering a motion for j.n.o.v. must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979) (in banc); Atkins v. Urban Redevelopment Auth., 489 Pa. 344, 414 A.2d 100, 103 (1980).

This court has stated that "[i]n reviewing the district court's ruling on the parties' motions for judgment n.o.v., [the appeals court] appl[ies] the same standard as the trial court." Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1034 (3d Cir.1988). Under federal law, this court should affirm the denial of a motion j.n.o.v. "unless the record 'is critically deficient of that minimum quantum of evidence from which a jury might reasonably afford relief.' " Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir.1980), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981) (quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir.1969)). In addition, this court reviews a district court's ruling on a motion for a new trial for abuse of discretion unless the court's denial of the motion is based on the application of a legal precept, in which case the standard of review is plenary. Link v. Mercedes-Benz of North America, Inc., 788 F.2d 918, 921 (3d Cir.1986).

III. Relevant Facts

The evidence viewed in the light most favorable to the plaintiff showed that over an 18-month period during 1942-43 Rotondo worked for 6 months as a tacker and for the remainder as a welder at the Philadelphia Naval Ship Yard. Rotondo testified that he worked on the Monticello during the summer of 1942 for at least 3 to 4 months, a minimum of 2 days per week. Although Rotondo did not personally handle pipecovering, he testified in deposition that he spent most of his time in the ship's boiler room, working 6 to 8 feet away from the pipecoverers who placed asbestos covering on pipes. The coverers would saw sections of the covering, causing dust to be released into the air.

Although Rotondo was unable to identify the names of the manufacturers on the boxes containing the pipecovering, product identification testimony was provided by Robert Souels who worked on the Monticello- rom the spring through the fall of 1942. During his time on the Monticello, Souels worked as a cleaner and rigger, spending approximately two-thirds of his time cleaning and the other third of his time on board the ship loading. As a cleaner, Souels would clean-up debris from pipecoverers in boiler rooms. Souels's testimony suggests that the boiler room on the Monticello was the size of the courtroom in which he was testifying. Souels testified that a lot of dust was created when the pipecoverers cut the asbestos-containing covering to fit over the pipes. The pipecovering material was in boxes three feet high labeled with the word "asbestos." Rotondo also testified that the pipecovering came from 36-inch boxes.

While working as a rigger, Souels would lower these boxes into the engine and boiler rooms. Souels stated that he saw two different names on the boxes he unloaded, Unibestos and Ehret, and he saw them with the same frequency. Moreover, Souels actually saw pipecoverers using Ehret sections on a regular basis and testified that during the periods when the pipecoverers worked with the Ehret coverings the atmosphere was "like a nice little snow storm." Souels also noted that the boiler rooms were not ventilated.

Finally, Souels made the following observations: that on all the ships that he worked, welders and tackers worked in the areas right around where the pipecoverers worked, that he worked alongside tackers, and that it would not have been possible for anyone working around the welders and tackers in these areas not to have breathed in dust from the Ehret sections.

Plaintiff offered Dr. Daniel C. DuPont as its medical expert, who testified that mesothelioma, unlike other asbestos-related diseases, is not dose-dependent, apparently because mesothelioma can result from "relatively insignificant exposure" to asbestos. App. at 90.

IV. Discussion

Keene relies primarily on Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50, alloc. denied, 520 Pa. 605, 553 A.2d 968 (1988). In Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 (3d Cir.1990), we predicted that the Pennsylvania Supreme Court would adopt the standard for showing causation in an asbestos products liability action set forth in Eckenrod. Indeed, the lower Pennsylvania courts have acknowledged Eckenrod as setting forth the law applicable in Pennsylvania. See, e.g., Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203, 209-10 (Pa.Super.1991); Godlewski v. Pars Mfg. Co., 408 Pa.Super. 425, 597 A.2d 106, 110 (Pa.Super.1991); Samarin v. GAF Corp., 391 Pa.Super. 340, 571 A.2d 398, 404 (1989), alloc. denied, 524 Pa. 629, 574 A.2d 71 (1990).

In Eckenrod, the Pennsylvania Superior Court, in affirming the trial court's order granting summary judgment in favor of the defendants, stated that in order for liability to attach in a products liability action, "plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier." 544 A.2d at 52. The court stated that "a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product's use." Id. In particular, a plaintiff must present evidence "to show that he inhaled asbestos fibers shed by the specific manufacturer's product." Id. The relevant evidence is "the frequency of the use of the product and the regularity of the plaintiff's employment in proximity thereto." Id. at 53.

Although the Eckenrod plaintiff presented evidence that could establish that the defendants' products were sent to the furnace area of the plant of her husband's employer, and that plaintiff's husband worked somewhere in the vicinity of those products, the court concluded that the evidence submitted by plaintiff consisting of affidavits of three of her husband's former co-workers "did not elaborate on the nature or length of the exposure or the brand of products available." Id. at 52. Accordingly, the Eckenrod court sustained the grant of summary judgment in favor of the defendants at issue.

In Robertson, this court analyzed whether the evidence produced on behalf of plaintiffs who claimed injury resulting from exposure to various asbestos-containing products used in a Firestone Tire and Rubber Company plant during their...

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