Taylor v. Celotex Corp.

• Decision Date: 07 May 1990
• Citation: 393 Pa.Super. 566,574 A.2d 1084
• Parties: , Prod.Liab.Rep. (CCH) P 12,458 William and Pauline TAYLOR, Appellants, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The Keene Corporation, Owens-Illinois, Inc. and Pittsburgh-Corning Corporation, Appellees. William TAYLOR and Pauline Taylor, H/W, Appellees, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The Keene Corporation, Owens-Illinois, Inc. and Pittsburgh-Corning Corporation, Appellants.
• Court: Pennsylvania Superior Court

Page 1084

574 A.2d 1084

393 Pa.Super. 566, Prod.Liab.Rep. (CCH) P 12,458

William and Pauline TAYLOR, Appellants, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The

Keene Corporation, Owens-Illinois, Inc. and

Pittsburgh-Corning Corporation, Appellees.

William TAYLOR and Pauline Taylor, H/W, Appellees, v. The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., The

Keene Corporation, Owens-Illinois, Inc. and

Pittsburgh-Corning Corporation, Appellants.

Superior Court of Pennsylvania.

Argued Aug. 16, 1989.

Filed May 7, 1990.

Suzanne Reilly, Philadelphia, for appellants (at 2592) and appellees (at 739).

Vincent D. Duke, Philadelphia, for appellants (at 739) and appellees (at 2592).

Before WIEAND, BECK and MONTGOMERY, JJ.

WIEAND, Judge:

In December, 1980, William Taylor and his wife, Pauline, residents of New Jersey, filed a civil lawsuit in the Court of Common Pleas of Philadelphia County in which they sought to recover damages for injuries allegedly suffered by Taylor as a result of long term occupational exposure to asbestos during approximately forty years of employment in the shipbuilding industry at the New York Shipyard in Camden, New Jersey, and the Philadelphia Naval Shipyard. ¹ This action, based on theories of negligence and strict liability, named as defendants numerous manufacturers and suppliers whose asbestos products were alleged to have caused Taylor to develop asbestosis and other related ailments. A claim for loss of consortium was also asserted on behalf of Mrs. Taylor. Prior to trial, settlements were reached with the following named defendants: Raybestos Manhattan, Inc.; Forty-Eight Insulation, Inc.; Nicolet Industries, Inc.; GAF Corp.; H.K. Porter Co., Inc. & Southern Asbestos Co.; Garlock, Inc.--Precision Seal Division; U.S. Rubber Co. & Uni-Royal, Inc.; and Owens-Corning Fiberglas Co., Inc. Additionally, Johns-Manville Corp. & Johns-Manville Sales Corp., UNARCO Industries, Inc., Pacor, Inc., and Amatex Corp., who had been named as defendants, filed for protection under Chapter Eleven of the Bankruptcy Code, and the causes of action against these defendants were stayed. ²

Trial in this matter commenced before a jury on November 18, 1986 against the remaining defendants, who are now the appellants, Celotex Corp., Eagle-Picher Industries, Inc., Keene Corp., Owens-Illinois, Inc., and Pittsburgh-Corning Corp. The case was tried on issues of liability and damages pursuant to the substantive law of New Jersey, and this has not been challenged. On December 3, 1986, the jury returned a verdict awarding Taylor compensatory damages in the amount of eight hundred thousand ($800,000) dollars and damages for loss of consortium in the amount of one hundred thousand ($100,000) dollars. In response to specific interrogatories, the jury apportioned fault among eighteen different companies, including not only the defendant/appellants, but also defendants who had settled or gone into bankruptcy. ³ Causal fault for Taylor's illness was apportioned by the jury equally among the eighteen companies at 5.5% each.

After the verdict had been returned, defendant/appellants filed a post-trial motion for judgment n.o.v. and/or a new trial, or alternatively for a remittitur. The plaintiff/appellees filed a petition for delay damages, and both sides filed motions to have the verdict molded. Thereafter, the trial court denied defendant/appellants' post-trial motions and refused to award delay damages on the ground that plaintiff/appellees' petition therefor had been untimely filed. In its post-trial opinion, the trial court, without explanation, molded the verdict to five hundred thousand ($500,000) dollars. Judgment was entered on the verdict on February 7, 1989 and defendant/appellants have appealed therefrom, raising the following issues for our review:

1. Whether the trial court erred in permitting plaintiffs' case to be decided by the jury where plaintiffs failed to prove that any specific products of defendants had caused husband-plaintiff's injuries?

2. Whether the trial court erred in admitting plaintiffs' expert testimony on state of the art issues where the proffered witness did not possess relevant expertise; where the witness's testimony rested on inadmissible hearsay; where the testimony was speculative; and where the subject of the testimony went to the ultimate issues in the case, in an area where laymen were competent to render their own judgments?

3. Whether the trial court erred in permitting plaintiffs' medical expert to testify beyond the scope of his pre-trial report?

4. Whether the trial court erred in refusing to permit defendants to elicit testimony on plaintiff's coronary disease and its impact on his symptomology from a qualified defense expert physician?

5. Whether the trial court erred in failing to order a mistrial, or, alternatively, in denying a motion for a new trial where plaintiffs' counsel addressed the jury in an inflammatory fashion, arguing facts not in the record and causes of action not before the jury?

6. Whether the trial court erred in charging the jury that it could not apportion plaintiffs' damages where there was a reasonable basis for doing so?

7. Whether the trial court erred in refusing a remittitur?

8. Whether the trial court erred in its molding of the verdict?

In addition, plaintiff/appellees have filed a cross-appeal in which they assert that "the trial court abused its discretion by dismissing a petition for delay damages filed nine days post-verdict, instead of five days as specified in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986)." We will address these issues seriatim.

I

The first issue raised by defendant/appellants challenges the trial court's denial of their motion for judgment n.o.v. on the ground that plaintiff/appellees failed to prove that Taylor's injuries had been specifically caused by products which they manufactured. To resolve this claim, we apply the following standard of review:

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 24, 521 A.2d 451, 454 (1987). See also: Laniecki v. Polish Army Veterans Assoc., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103 (1984).

Cooper v. Burns, 376 Pa.Super. 276, 280-281, 545 A.2d 935, 937 (1988). See also: Lopa v. McGee, 373 Pa.Super. 85, 540 A.2d 311 (1988); Elder v. Orluck, 334 Pa.Super. 329, 483 A.2d 474 (1984), aff'd, 511 Pa. 402, 515 A.2d 517 (1986).

Appellants rely on the decision of the Pennsylvania Superior Court in Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1988), in support of their contention that plaintiff/appellees failed to establish at trial that their asbestos products caused the injuries suffered by Mr. Taylor. In Eckenrod, the Court upheld the grant of a summary judgment against the plaintiff in a products liability action on the ground that the plaintiff had failed to present any evidence to establish that injury had been caused by the asbestos products of a particular manufacturer or supplier. The Court reasoned:

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. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer's product. Wible v. Keene Corporation, No. 86-4451 Slip op. (E.D.Pa. August 19, 1987) Anastasi v. Pacor, Inc., No. 6251 (C.P. Phila. Co., March 8, 1983) aff'd 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, 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. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants' products were the cause of plaintiff's injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).

Eckenrod v. GAF Corp., supra at 190-191, 544 A.2d at 52.

In a products liability action in New Jersey, however, "[a] claimant need only demonstrate that at the time it was sold the product was defective, and that the defect caused injury." Huddell v. Levin, 537 F.2d 726, 734 (3d Cir.1976) (emphasis added). See also: Whitehead v. St. Joe Lead Co., Inc., 729 F.2d 238, 246 (3d Cir.1984); Campos v. Firestone Tire & Rubber Co., 98 N.J. 198, 205-210, 485 A.2d 305, 309-311 (1984); Scanlon v. General Motors Corp., 65 N.J. 582, 589-591, 326 A.2d 673, 677 (1974); Manieri v. Volkswagenwerk A.G., 151 N.J.Super. 422, 430-432, 376 A.2d 1317, 1322 (1977). The trial court must make the threshold determination "whether, under the circumstances, there is sufficient proof on the issues of defectiveness and causation to submit the case to the jury." Huddell v. Levin, supra at 734-735. We additionally observe that "the New Jersey cases manifest a policy liberally favoring jury resolution of defectiveness issues, as well as causation issues, in products liability cases." Huddell v. Levin, supra at 736, citing Moraca v. Ford Motor Co., 66 N.J. 454, 332 A.2d 599 (1975); Newmark v. Gimbel's Inc., 54 N.J. 585, 258 A.2d 697 (1969); Cintrone v. Hertz Truck Leasing, 45 N.J. 434, 212 A.2d 769 (1965). With regard to causes of action for negligence, New Jersey law imposes a similar requirement that the plaintiff establish that the defendant's negligent conduct was the proximate cause of the plaintiff's injuries. See: Lamb v. Barbour, 188 N.J.Super. 6, 11-13, 455 A.2d...