Simpson v. Pittsburgh Corning Corp.
| Decision Date | 16 April 1990 |
| Docket Number | No. 465,D,465 |
| Parties | Prod.Liab.Rep.(CCH)P 12,442 Helen E. SIMPSON, Individually and as Executrix of the Estate of David Simpson, deceased, Plaintiff-Appellee, v. PITTSBURGH CORNING CORPORATION, Defendant-Appellant, Eagle-Picher Industries, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., The Celotex Corporation, Intergy, Inc., Raymark Industries, Inc., a/k/a Raybestos-Manhattan, Inc., Amchem Products, Inc., Defendants. ocket 89-7742. Second Circuit |
| Court | U.S. Court of Appeals — Second Circuit |
Frank H. Santoro, Hartford, Conn. (Frederick B. Tedford, Frank M. D'Addabbo, and Wendy W. Wanchak, Danaher, Tedford Lagnese & Neal, Hartford, Conn., on the brief), for defendant-appellant.
Stephen G. Schwarz, Rochester, N.Y. (Faraci, Guadagnino, Lange & Johns, Rochester, N.Y., on the brief), for plaintiff-appellee.
Charles E. Dorkey III and Thomas I. Sheridan, III, Richards & O'Neil, New York City, submitted an amicus curiae brief for T & N plc.
Before KAUFMAN, NEWMAN and WINTER, Circuit Judges.
In the aftermath of the Supreme Court's suggestion that the imposition of some punitive damages awards may violate the Due Process Clause, see Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., --- U.S. ----, 109 S.Ct. 2909, 2921 & n. 23, 106 L.Ed.2d 219 (1989), we have repeatedly been asked to rule that successive punitive damages awards in asbestos cases are unconstitutional. See, e.g., Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.1990); Racich v. Celotex Corp., 887 F.2d 393, 397-99 (2d Cir.1989). Thus far, we have declined to adjudicate the due process claim because the defendant asserting the claim on appeal has failed to make an adequate record in the trial court to support it. This case is another example of that pattern. Pittsburgh Corning Corporation appeals from the July 6, 1989, judgment of the District Court for the Western District of New York (Michael J. Telesca, Chief Judge) awarding Helen E. Simpson, individually and as executrix of her husband's estate, $1,277,000 in compensatory damages and $2,300,000 in punitive damages after a jury trial. Simpson alleged that her husband died of asbestos-related injuries. We affirm.
We need set forth only those facts pertinent to the challenges to the punitive damages award, essentially a claim that any such award, rendered after prior awards, was barred by the substantive component of the Due Process Clause and claims that the award in this case denied appellant procedural due process. Plaintiff's decedent, David Simpson, was employed at Rochester Gas and Electric Company from 1957 to 1988. His primary duties involved working on the steam piping system. This work brought him into extensive contact with asbestos pipe insulation materials. One of the three insulation materials used by Rochester Gas and Electric was "Unibestos," a thermal insulation pipe covering manufactured by appellant from 1962 until 1972. Unibestos contained amosite, one of several different types of asbestos fibers. In 1986, David Simpson was diagnosed as suffering from mesothelioma, a lung disease from which he died two years later. Substantial evidence attributed his illness and death to asbestos exposure. The evidence also disclosed that Pittsburgh Corning became aware of asbestos health risks as early as 1962 and deliberately delayed warning customers and users of these risks for various reasons, including concern about weakening its defense of a lawsuit and its position in collective bargaining with its employees.
In answer to special interrogatories, the jury found that appellant's asbestos product was unsafe, that appellant breached a duty to warn users of dangers that became known after the product was sold, and that exposure to the product was the proximate cause of David Simpson's illness and death. The jury assessed compensatory damages of $27,000 for medical and burial expenses, $525,000 for pain and suffering, $500,000 for lost future earnings, and $225,000 for Helen Simpson's loss of consortium, for a total of $1,277,000. The jury also determined that all four of the co-defendants, each of which had settled before the verdict, were also responsible for Simpson's death. In assigning shares of responsibility to the five named defendants, the jury found appellant liable for 45 percent of the compensatory damages. The punitive damages award against appellant was $2,300,000.
The circumstances concerning appellant's substantive and procedural challenges to punitive damages are as follows. In its answer to the complaint, appellant disputed plaintiff's claim for punitive damages with only the general assertion that such damages were not "recoverable or warranted." Thereafter liaison counsel for all the defendants broached the issue of bifurcation or trifurcation at a conference with the District Judge. Appellant makes no claim that the Judge was then provided with any specific basis for separation of issues, such as a party's intention to introduce evidence of its net worth or of prior punitive damages awards in an effort to resist a subsequent punitive award or hold down its amount.
The day before the trial began, counsel for appellant formally moved for bifurcation, requesting that the jury consider the amount of punitive damages only after it had decided liability for such damages. This request was not accompanied by any indication that appellant planned to introduce evidence of its net worth or of prior punitive damages awards. The request was denied. After the plaintiff had presented her case, appellant sought reconsideration of its request for bifurcation. On this occasion, appellant indicated for the first time its intention to present evidence of prior punitive awards in the event bifurcation was ordered. However, no detail was supplied concerning the number of such awards, their amount, or the similarity between the facts underlying the prior awards and the facts underlying plaintiff's claim. Reconsideration was denied.
After the jury returned its verdict, appellant moved to set it aside and, for the first time in the litigation, supplied some detail supporting its due process challenge to a punitive damages award. An affidavit of its vice-president and general counsel reported that as of June 1, 1989, more than 78,000 cases had been filed against Pittsburgh Corning seeking damages for asbestos injuries, that punitive damages had been sought in most of these cases, and that the company had spent "millions of dollars in indemnity and defense in connection with the disposition of more than 29,000 cases of alleged asbestos disease." The affidavit cited only two instances in which appellant had been found liable for punitive damages in connection with asbestos claims: a 1983 judgment in the Southern District of Texas awarding $300,000 in punitive damages and a 1988 judgment in a West Virginia state court awarding $75,000 in punitive damages. The affidavit stated that both judgments had been "satisfied," a representation that left an ambiguity as to whether the amounts awarded had been paid or whether post-trial settlements had occurred. No details concerning the facts of these two cases were reported.
Appellant contends that the $2.3 million punitive damages award in this case deprives it of property in violation of the substantive component of the Due Process Clause. In advancing this argument, appellant is not inviting us to decide the question raised but left unresolved in Browning-Ferris--namely, whether the size of a particular punitive damages award exceeds due process limitations. Instead, appellant invites us to rule that the Due Process Clause precludes any punitive damages award rendered after a party has previously been assessed punitive damages for the same conduct or, alternatively, that a successive punitive damages award is barred after the aggregate of prior awards for the same conduct has reached the maximum amount tolerable under that clause.
These alternative contentions proceed from rather different implied premises. The first contention, which might be called the "single punitive award," assumes that the fact-finder making the first award understood its assignment to be the selection of that sum of money appropriate to punish the tort-feasor for the full extent of its wrongful conduct, not merely a sum appropriate as punishment for the injuries to the plaintiffs in the lawsuit. It was in recognition that this premise will not necessarily be valid that Judge Sarokin modified his pioneering ruling in Juzwin v. Amtorg Trading Corp., 705 F.Supp. 1053 (D.N.J.1989), which had allowed a defendant to strike a punitive damages claim upon proof that punitive damages had previously been imposed for the same conduct. On reconsideration Judge Sarokin conditioned his ruling upon a demonstration that the prior award had been made after a complete hearing, preceded by investigation of the full scope of the defendant's wrongful conduct, with an opportunity for participation by similarly situated plaintiffs and with an instruction to the jury that its award will be the only punitive damages rendered for such conduct. Juzwin v. Amtorg Trading Corp., 718 F.Supp. 1233, 1235 (D.N.J.1989) (Juzwin II ).
The second contention, which might be called the "aggregate punitive award," assumes that the juries making prior punitive awards functioned in the traditional manner, confining their consideration of the appropriate punishment to the injury inflicted upon the plaintiffs in each particular litigation. This contention further assumes that the judge asked to rule that the aggregate of prior awards has reached the maximum amount tolerable under the Due Process Clause will be provided with a factual basis sufficient for evaluating the entire scope of the defendant's wrongful conduct, a basis comparable to what Juzwin II...
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