Yohannon v. Keene Corp.

• Decision Date: 07 February 1991
• Docket Number: No. 88-1170,88-1170
• Citation: 924 F.2d 1255
• Parties: Robert YOHANNON and Barbara Yohannon v. KEENE CORPORATION; GAF Corporation; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Garlock, Inc.; Raymark Industries, Inc.; Delaware Insulation; Celotex Corporation; Owens-Corning Fiberglas Corporation; and Owens Illinois Glass Company v. PACOR, INC. and Nicolet, Inc. Appeal of RAYMARK INDUSTRIES, INC.
• Court: U.S. Court of Appeals — Third Circuit

Page 1255

924 F.2d 1255

Robert YOHANNON and Barbara Yohannon v. KEENE CORPORATION; GAF Corporation; Eagle-Picher

Industries, Inc.; Fibreboard Corporation; Garlock, Inc.;

Raymark Industries, Inc.; Delaware Insulation; Celotex

Corporation; Owens-Corning Fiberglas Corporation; and Owens Illinois Glass Company v. PACOR, INC. and Nicolet, Inc.

Appeal of RAYMARK INDUSTRIES, INC.

No. 88-1170.

United States Court of Appeals Third Circuit.

Argued Oct. 19, 1988.

Reargued July 12, 1990.

Decided Jan. 24, 1991.

As Amended Feb. 7, 1991.

James D. Coleman, (reargued), David Kedson (argued), Tyson W. Couglin, Dexter R. Hamilton, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellant.

Martin Greitzer (reargued), Robert J. Gordon (argued), Jonathan W. Miller, Greitzer & Locks, Philadelphia, Pa., for appellees Robert and Barbara Yohannon.

Before BECKER, HUTCHINSON and SCIRICA, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

In this asbestos action, Raymark Industries, Inc. (Raymark or the Company), appeals a judgment of the United States District Court for the Eastern District of Pennsylvania granting Robert and Barbara Yohannon (the Yohannons) damages in the amount of $130,254.80, plus pre-judgment interest of $33,058.67, for asbestos-related injuries. The jury found that Mr. Yohannon's injuries were partly attributable to Raymark because he was exposed to the Company's asbestos products while employed at the DuPont Chambers Works plant (DuPont or the Plant) in Deepwater, New Jersey. The original complaint was filed in the United States District Court for the Eastern District of Pennsylvania against multiple defendants engaged in the manufacture, use and marketing of asbestos and asbestos products. Raymark was the only defendant that did not settle. At trial, a jury found for the Yohannons and apportioned forty percent of the gross damages against Raymark. The district court entered judgment against Raymark in accord with the jury's assessment of relative responsibility among all the original defendants.

On appeal, Raymark disputes the sufficiency of the evidence supporting certain elements of the jury's liability and damage findings. It also attacks the district court's refusal to permit one of its proposed witnesses to testify. Finally, Raymark challenges the rule of decision on pre-judgment interest. Although sitting in diversity as a Pennsylvania forum, the district court applied New Jersey law to all aspects of this case, including the computation of pre-judgment interest. This amount was determined in accord with the New Jersey court rule governing assessment of delay damages. The Company argues that the district court erred in applying New Jersey law to the issue of pre-judgment interest, since a Pennsylvania forum would have chosen to apply Pennsylvania law on pre-judgment interest, rather than the New Jersey court rule. Furthermore, Raymark argues that a Pennsylvania court would not have allowed pre-judgment interest in this case. We will affirm the district court's judgment in all respects except for its use of New Jersey law in computing delay damages. On that question, we hold that Pennsylvania law applies, that the applicable law is Pennsylvania Rule of Civil Procedure 238, that Rule 238 requires pre-judgment interest in this case and that this record presents no state or federal constitutional impediment to Rule 238's application. Therefore, we will remand this matter for the district court to compute delay damages or pre-judgment interest under the current version of Rule 238 and modify its judgment accordingly.

I. Procedural History

This suit began on October 2, 1985, when the Yohannons filed a complaint in the district court seeking damages against ten asbestos companies for asbestos-related injuries and loss of consortium. The complaint alleged that Robert Yohannon was injured by his exposure to asbestos while employed at DuPont. A jury trial began on November 9, 1987, and by the close of the second day all defendants except Raymark had settled. On November 13, 1987, the jury found in favor of the Yohannons and determined that they had suffered $344,000 in total damages. The jury, through its answers to interrogatories, separated the damage award into five parts: (1) Past Lost Wages--$70,000; (2) Future Lost Wages--$126,000; (3) Past and Future Medical Expenses--$75,000; (4) Pain and Suffering--$60,000; and (5) Loss of Consortium--$13,000. The jury found that Mr. Yohannon would have continued to work for at least four and one-half more years if he had not been exposed to asbestos, and that the average rate of interest over that period would have been six percent. The jury apportioned forty percent of the liability against Raymark and sixty percent among six of the other original defendants whose asbestos products were also used at DuPont. See Appellant's Appendix (App.) at 622-26. On November 17, 1987, the district court entered judgment against Raymark on the jury verdict for $130,254.80, representing forty percent of the total damage award. Id. at 646.

On November 16, 1987, the Yohannons filed a motion for pre-judgment interest. On November 25, 1987, Raymark filed alternate motions for judgment n.o.v. and a new trial and also filed a motion to alter or amend the judgment.

This appeal was originally argued on October 19, 1988. Before decision, an involuntary bankruptcy petition was filed against Raymark in the United States Bankruptcy Court for the Eastern District of Pennsylvania. The bankruptcy court assumed jurisdiction over Raymark's affairs in a Chapter 11 reorganization proceeding. Further action by this Court was automatically stayed pursuant to 11 U.S.C.A. Sec. 362 (West 1979 & Supp.1990). On May 31, 1990, the bankruptcy court lifted the stay to permit adjudication of this appeal. Following supplemental briefing on intervening developments in the law relating to pre-judgment interest and delay damages, the case was reargued on July 12, 1990.

In its appeal, Raymark raises the following arguments for our review: (1) that the district court should have allowed the testimony of a live witness instead of a videotape of that witness's deposition testimony; (2) that the evidence does not support the jury's allocation of forty percent of the Yohannons' damages to Raymark; (3) that the claim for lost wages, past and future, was improperly submitted to the jury; (4) that there was insufficient evidence to support the jury's award for medical expenses; and (5) that Pennsylvania, rather than New Jersey, provides the rule of decision on questions of pre-judgment interest or delay damages.

II. Factual History

Under the usual standard, we set forth the facts of this case in the light most favorable to the verdict winners, Robert and Barbara Yohannon. See Simone v. Golden Nugget Hotel & Casino, 844 F.2d 1031, 1034 (3d Cir.1988). According to his testimony at trial, Robert Yohannon began working at DuPont in 1952 as an engineer. App. at 53-54, 56. From 1952 until 1955, he primarily conducted studies of insulation workers. Id. at 56-58. During this period, he was exposed to various types of asbestos insulation products, including sections, block, blankets, tape, gaskets and cement. Mr. Yohannon believed that Raymark made both the blankets and tapes. Id. at 59, 68. He later remembered another type of Raymark cloth. Id. at 298-99. Although these products were used sparingly, he was exposed to them for almost two full days per week. Id. at 67-70. Mr. Yohannon further testified that while "the harder insulation," sections and blocks, made more asbestos dust, it was not as fine a dust as the blankets created. Id. at 66-67.

In 1955, Mr. Yohannon was promoted to the maintenance department at the Plant. Id. at 71. There, his asbestos exposure decreased slightly. Id. at 81. Following other promotions, he was moved to different areas. His exposure to asbestos substantially diminished in 1970. Id. at 81. It ceased altogether in 1976. Id. at 82. Although he planned to work at DuPont until he was sixty-five years old, he voluntarily retired at age fifty-eight on March 31, 1985, because he experienced continued shortness of breath. This condition began early in the 1980's, and from then on he had trouble performing his job because it required a lot of field work. Id. at 242. He claimed that work was a struggle in the last few years. Id. When DuPont offered a voluntary retirement program in January of 1985, Mr. Yohannon accepted because of his illness. Id. at 244. ¹

Mr. Yohannon's asbestosis was first diagnosed in June of 1984. His medical expert testified that his condition is progressive and will grow worse, id. at 163, although there is no evidence that he is suffering from anything other than shortness of breath. He was told to stop smoking, which he did. His earnings prior to accepting DuPont's early retirement offer ranged from $57,280 in 1981 to $64,266 in 1984. He now earns about $6,000 a year for work done for a friend's company, Frangible Discs, and receives a pension from DuPont of $36,000 per year, before taxes. Id. at 258.

III. Jurisdiction

The district court had diversity jurisdiction over this action pursuant to 28 U.S.C.A. Sec. 1332 (West 1966). The Yohannons are citizens of Pennsylvania, Raymark is a citizen of Connecticut, and the claim exceeded the then required jurisdictional amount of $10,000. We have appellate jurisdiction over the final order of the district court pursuant to 28 U.S.C.A. Sec. 1291 (West Supp.1990).

IV. Standards of Review

We review the district court's decision to exclude the live testimony of Raymark's witness for abuse of discretion. See In re Japanese Elec. Prods. Antitrust Litig., 723 F.2d 238, 260 (3d Cir.1983), rev'd on other grounds sub nom. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also 21 C. Wright & K. Graham, Federal Practice & Procedure Sec. 5037, at 193-95 (197...