Whatley v. Armstrong World Industries, Inc.

• Decision Date: 15 December 1988
• Docket Number: No. 87-1710,87-1710
• Citation: 861 F.2d 837
• Parties: Albert WHATLEY, Plaintiff-Appellant, Cross-Appellee, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants, Raymark Industries, Inc., Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 837

861 F.2d 837

Albert WHATLEY, Plaintiff-Appellant, Cross-Appellee, v. ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants Raymark Industries, Inc., Defendant-Appellee, Cross-Appellant.

No. 87-1710.

United States Court of Appeals Fifth Circuit.

Dec. 15, 1988.

Rehearing Denied Jan. 24, 1989.

Brent M. Rosenthal, Dallas, Tex., for plaintiff-appellant, cross-appellee.

Elizabeth M. Thompson, Karen Beasley Lukin, Houston, Tex., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, JOHNSON and JONES, Circuit Judges.

REAVLEY, Circuit Judge:

Albert Whatley brought this products liability action to trial for injuries arising from his exposure to the asbestos products of Raymark Industries' predecessor, Raybestos-Manhattan. The jury found in Whatley's favor but he contends the jury's findings of 90.01% contributory causation by ten settling defendants is without sufficient evidence. Raymark's cross-appeal challenges the award for future medical expenses. We affirm in part but modify the recovery against Raymark.

I. FACTS

Albert Whatley was employed for over thirty years as a chipper at an Alabama shipyard. Whatley's work, smoothing the finish of iron surfaces onboard ships, often placed him in close unventilated spaces. Although he did not personally use asbestos-containing products, Whatley worked alongside other tradesman, including insulators, who used such products. Over the course of his employment Whatley was exposed to asbestos dust consequential to the use of asbestos-containing products. Whatley retired in 1982 and later developed lung cancer, which was diagnosed and operated on in 1986.

Whatley filed this product liability suit against Raymark Industries and thirteen other defendants, all of whom he alleged caused his lung ailments by the asbestos from their products. One defendant was severed after filing insolvency proceedings. Whatley reached a settlement with twelve of the defendants and proceeded to trial against Raymark alone. The jury returned a verdict in Whatley's favor. Raymark and ten of the settling defendants were found to have manufactured defectively designed asbestos products that were producing causes of Whatley's injuries. The jury assigned a percentage of contributory causation to each defendant, 9.09% to Raymark and nine of the settling defendants and 9.10% to another settling defendant. The damages award was correspondingly reduced by 90.01% to represent Raymark's 9.09% responsibility.

Whatley filed this appeal contending that there is insufficient evidence to support the percentage of causation allocated by the jury to the settling defendants. Raymark responds that there is sufficient evidence in support of the contributory causation by the settling defendants or, in the alternative, if the evidence is insufficient as to the settling defendants it is also insufficient as to Raymark. Raymark also presents a cross-appeal challenging the award of future medical expenses.

II. DISCUSSION

A. Comparative Causation of Settling Defendants

In Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984), the Texas Supreme Court established a system of comparative causation to be applied in strict products liability cases. ¹ Under this system the jury apportions responsibility among all--including non-settling defendants, settling defendants, and the plaintiff--whose acts or products combined to cause the plaintiff's injuries. The non-settling defendants' liability and the plaintiff's recovery are to be reduced by the total percentage share assigned to the settling defendants. Id. at 429. The non-settling defendant must establish the liability of settling defendants in order to benefit from Duncan 's system of comparative causation. Dartez v. Fibreboard Corp., 765 F.2d 456, 474 (5th Cir.1985); see Shipp v. General Motors Corp., 750 F.2d 418, 425 (5th Cir.1985) (Duncan placed the allocative burden of comparative causation on the defendant).

1. Sufficiency of the Evidence

Whatley contends that Raymark failed to provide sufficient evidence of his exposure to the asbestos containing products of the settling defendants and is thus not entitled to a reduction in the damages award. The federal standard for review of sufficiency of the evidence applies in diversity cases. This court must review all the evidence in the light most favorable to the jury's verdict and must affirm the verdict unless the evidence points "so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary [conclusion]." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969).

As an initial matter, Raymark argues that Whatley's "judicial admissions" provide more than sufficient proof of the liability of all ten settling defendants. Specifically, Raymark contends that statements made by Whatley in his complaint, pretrial order, answers to interrogatories as well as statements by counsel and witnesses, are judicial admissions and as such are binding upon Whatley. Whatley responds that allegations in his complaint claiming that the settling defendants made defective products that caused his harm constitute inconsistent pleadings and as such are not binding. Liberal pleadings and flexible joinder are favored as methods of promoting efficient and fair judicial administration. See, 5 C. Wright & A. Miller, Federal Practice and Procedure Secs. 1282, 1283 (1969); 7 C. Wright & A. Miller, M. Kane, Federal Practice and Procedure Secs. 1601, 1602, 1604 (1986 & Supp.1988). Although Whatley's pleadings are not technically inconsistent, we find the same policies to be applicable here. See Continental Ins. Co. of New York v. Sherman, 439 F.2d 1294, 1298 (5th Cir.1971).

Duncan specifically allows the non-settling defendant to reduce his liability to the plaintiff only upon providing evidence to the jury of the percentage of causation attributable to the settling defendants. Not only do the statements to which Raymark points provide little real evidence of the liability of the settling defendants, but they provide no evidence upon which a jury could determine the percentage or extent of liability as required by Duncan. To make Whatley's pleadings conclusive on this issue would render the Duncan requirement meaningless. We decline to adopt Raymark's view and look to the totality of the evidence in reaching our conclusions. ²

The Texas Supreme Court in Duncan did not quantify the evidence required to support a finding of contributory causation. That decision and Fifth Circuit decisions in its wake, however, refer to the non-settling defendant's burden as that of establishing liability. See Duncan, 665 S.W.2d at 434; Dartez, 765 F.2d at 474. In light of this language and in the absence of language in support of a different burden under Duncan, we look to the burden of proof that has been imposed on litigants in other asbestos product cases to determine whether sufficient evidence of liability for contributory causation was provided in this case.

Issues of insufficiency of the evidence as to causation require consideration of the nature of the product and the extent of the plaintiff's exposure. Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1143 (5th Cir.1985). A survey of Fifth Circuit challenges to the sufficiency of the evidence in asbestos litigation reveals a varying requirement of proof. In Gideon, evidence of exposure, challenged as insufficient by a non-settling defendant, consistent of the plaintiff's testimony that he worked around the defendant's products for 25 years. There was no testimony or other evidence, however, on the plaintiff's contact with the products or any dust created from their use. Id. at 1144. The court held that the evidence provided insufficient proof of causation. In Martin v. American Petrofina, Inc., 779 F.2d 250, 251-52 (5th Cir.1985), the court held sufficient evidence was offered in support of the jury's finding that, "more probably than not," the plaintiff had been exposed to the defendant's products. The plaintiff could not remember working with the defendant's product in his job removing insulation. Evidence was provided, however, from a supply officer who testified that the defendant's products were used by the plaintiff's employer during the relevant years and from insulators who testified that they had used the defendant's products. The plaintiff in Dartez v. Fibreboard Corp., 765 F.2d 456, 470 (5th Cir.1985) was found to have offered insufficient evidence of his exposure and of the nature of the defendant's product. The identification of defendant's product was made by a co-worker and the evidence showed the product to have a low asbestos fiber emittance and the plaintiff's exposure to be short (16 to 18 weeks). In Migues v. Fibreboard Corp., 662 F.2d 1182, 1185 (5th Cir. Unit A Dec. 1981), uncontradicted testimony of former co-workers that decedent-plaintiff had worked with defendant's products, and that use of the products created asbestos dust which all the workers inhaled, provided sufficient evidence to support the jury's conclusion that plaintiff had been exposed to defendant's products. Similarly, although unable to prove with any specificity that he came into contact with the defendants' products, the plaintiff in Jackson v. Johns-Manville Sales Corp., 727 F.2d 506 (5th Cir.1984) provided sufficient circumstantial evidence of causation to support a jury verdict. The evidence showed that defendants' products were ordered for use on a number of ship hulls on which the plaintiff worked and co-workers testified that they worked with the products under very dusty circumstances. Id. at 523. Finally, in Halphen v. Johns-Manville Sales Corp., 737 F.2d 462 (5th Cir.1984), the court rejected an insufficiency of the evidence challenge to a jury's finding that the defendant's products played a substantial part in the plaintiff's...