Parker v Bell Asbestos 3d Cir 1987
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Transcript of Parker v Bell Asbestos 3d Cir 1987
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8/11/2019 Parker v Bell Asbestos 3d Cir 1987
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NOT fOR puBLICATION
UNITED STATES COURT OF APPEALS
FOR
THE
THIRD CIRCUIT
No.
86-1197
VIRGINIA
PARKER, Ex.cutrix
t
the Estate of
ARTHUR PARKER,
d.c .as .d , and VIRGINIA
PARKER,
in
her own r i9ht ,
Appellant
v.
BELL ASBESTOS MINES,
LTD.,
LAXE.ASBESTOS
OF
QUEBEC,
TURNER
NEWALL
LTD.,
B R I N C ~ t lk a CASSIAR ASBESTOS CORPORATION
LTD.,
CHARTER CONSOLIDATED,
CHARTER
CONSOLIDATED
INVESTMENT,
TURNER ASBESTOS
FIBERS LIMITEO,
e t
ale
APPEAL ROM THE UNInO S T ~ T E S DISTRICT
COURT
FOR THE
EASTERl;J- bISTRICT OF
PENNSYLVANIA
D.C.
Civil
No.
83-3289
Arqued November 30, 1987
Befor.: WEIS, HIGGINBOTHAM,
and
HANSMANN,
Circuit
Judges.
Fil .d
DE a 98
Daniel
G. Childs, Esquir. (ARGUED)
Joseph
D.
Sbein,
P.C.
235 S. 17th Stre . t
Philadelphia, P 11103
Attorney
t r A p p l ~ a n t
Fredric L. Goldt.in, Esquire
(ARGUED)
Ellen
Brown Furman,
Esquire
Laura
J . Meltzer,
Esquir.
Goldfein
,
Joseph
Packard
Buildinq,
17th
Floor
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Attorneys
to
Appelle, Bell Asbestos Min.,. Ltd.
Myron J . Bromberg
Esquire
ARGUED)
Moira L. Brophy Esquire
PorZio, Bromberg Newman, P.C.
163
Madison
Av.nue
Horristown,
New
Jersey
07960
Cozen
and O'Connor
The Atrium, Third Floor
1900 Market Str
Philadelphia,
PA 19103
Atto,neys t r Appellee
Lake
Asbesto.
of
Qu.b.c.
Ltd.
OPINION
OF THE
COURT
PER
CURIAM.
The pla int i f f s decedent di .d
of
lung cancer
in
1982.
During the pr.ceding twenty years, he had been employed as a
plant
engineer
by
the
Amatex
Corporation
(torm.rly
American
Asbestos Texti l . Corporation)
in
Norri.town,
P.nnsylvania.
The
company manufactur t ex t i l. s containing
asb.stos supplied by
some of
the
d.f.ndants. According
to
t
imony,
there
was a
substantial m.a.ur.
of
a,be. to , dust
in
the plant.
Decedent work.d primarily
in an
air-condit ion.d
office
, .para t .d
y val ls and
door.
from the u ~ c t u r i n q faci l i ty.
OVer a
pariod
a t
torty y.ars,
h . habitually ok.d
about
a
pack
and a
half
of c igar . t t
per day,
for
a to ta l
of
sixty
pack
y.ar
1
1. A pack y.ar d.note, cumulative .xpo.ure
to
cigarette smoke
One
pack
a
day
for
on.
year
equal.
on.
pack
y.ar .
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The pla in t i f f ' dical expert tes t i f ied that the
combined
effects
of
exposure
to
asbestos and cigaret te
smoKing
caused the carcinoma. The defendant 's expert tes t i f ied that
cigarette
oking
alone caus.d the
decedent ' .
death.
Under a
revers.
bifurcation
procedure,
the
dis tr ic t
court t r ied the damage. i ue before determining l iab i l i ty . The
judge submitted
to
the
jury
interrogatories on the
cause
of
death
as
well
as the amount
and
apportionment of
damages.
The jury
found that s.oking cigaret tes
contributed
sixty percent, and
inhaling asbestos torty percent, to the develop nt of the
decedent's
lung
cancer.
The
court
reduced
to ta l
damages,
fixed
at
214,000,
to 85,600
to
re t lect
the
percent
of
causation
attributable to
asb.stos
exposure.
Sefore
t r ia l , plaint i f f had
set t led
with defendant
Turner
Newall Ltd. for 95,000.
Because
that amount .xceeded the
judgment
for
plaint i ff , the
dis t r ic t
court,
applying the
Pennsylvania
Unitorm Contribution
Among Joint Tort-feasors Act,
4 Pa, Cona. s ta t . Ann. I
8321,
determined
tha t
the verdict had
been
satisfied
and
entered
judgment
for defendants.
Plaint i f f has appealed, contending tha t the
di . t r i c t
court
erred
in
directing
apportionaent of
da ges ,
and
in ta i l ing
to allow
delay
4aaage. under Pennsylvania Rule
of
Civil
Procedure
238.
Shortly
before
t r i a l ,
the
Pennsylvania
Superior court
in Martin y.
Jphns-Manyille
Cprp., 349
Pa,
Super.
46,
502 A.2d
1264 1985) (Martin I ) , reV'd, Pa, ____ , 528 A.2d 947
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(1987), held that a jury could reduce damage. for
pulmonary
di .ea .e
to
the extent
that
cigarette smoking caused
the
disabi l i ty .
While the Parker appeal was pendinq in th is
court,
the
Pennsylvania Supreme
Court, by
a clo.ely divided vote,
rever.ed
the
judqment
in
Martin
I
and
directed
a new
t r i a l
on
damage.
only. Martin
v.
ovans-Corning
[ themla
Corp.,
_ Pal
_ 528 A.'2d 947 (1987) (Martin II .
wo
justices joined with Just ice Lar
n
in
the
Martin
plural i ty opinion holding that the jury 's apportionment could
not stand because
i t
was ba.ed on speculation.
Three
just ices
dissented. In his
concurring
opinion,
Ju. t ice
McOermott stated:
The Majority
Opinion (plurali ty] stands for a
single
proposition,
i . e . ,
under
the facts and circumstances of th is case
there
was not enough evidence
to
submit
the
i
ue of
apportionment
to
the
jury. With
this
I
can
agre
.
14. a t ____ ,
528 A.2d
a t 951.
But he
c.utioned
that the
judqment
of the
court
did
not
mean that evidence of
contributory
negligence is
in.dmis.ible in an a .be . to . i . c Nor were the defendants to
be precluded from
introducinq
new evidence of
decedent's
n.qliqence.
14.
a t
____ 528 A.2d t 951.
lecau.e only two
ju . t i ce .
joined Ju . t ice Lar.en's
opinion,
i t
do
not
repr
ent
a
aajori ty
view,
and
thus
i
not
considered
controlling precedent. Varaus
y, Pitaan Mfg.
Cg.,
675
F.2d 73, 75 (3d Cir. 1982). Therefore,
Justice
McDermott's
concurrence
states the
l i . i t ed boldinq
of the court . A. noted
above,
Ju. t ice McOermott re . t r ic ted
the
Martin I I
decision
to the
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sufficiency of
the
evidence. In
concert
with
the three
dissenting just ices, he also emphasized
that
the
pla in t i f f s
own
conduct may
be
a substantial cause in
bringing
about his harm.
The narrow
holdinq of Martin I I requires comparison
of
the factual backqround there with tha t
pre.ently
before us. As
plaint i f f pointed out
in
her
in i t i a l
brief:
-There are
sUbstantial
differences
between Martin I I and the
instant
appeal.
For example, Martin
II
addressed the
si tuat ion
where two
dis t inct
disea.e
processes contributed to
the
pla in t i f f s disabil i ty .
Indeed,
in
that
case
the evidence
different iated
a
condition
in
the upper lobe
of the lung
caused by smoking from one in
the
lower
lobe at tr ibutable to
asbestos
inhalation.
In th is case,
d.cedent
has only one
condition which
the
jury found
was
caused
by two toxic agents.
The
Martin
I jury was charged to determine what
percentage
of
his
condition
[was]
due
to cigaret te
smokinq.
In
the
ca.e
a t pand
the interrogatories
asked the jury
to state Itas
a
percentage,
how
much each [c igaret tes and
a.bestos]
contributed
to the development of Mr. Parker's lung cancer.
Apparently,
a majority of the pennsylvania Supreme
court agre.s that
section
433A(1) (b) of the R
a t
nt (Second)
of
Tort
pr
state
law on
the subject .
iAA
14.
a t ____
,
528
A.2d
a t
9.9 . That section reads: Damage. for harm are
to
be
apportioned a.ong two or more cause.
where
Cb there is
a r .asonable basis
for
determining the contribution
of each
cause
to a
. ingle
harm.
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Death in th is case resulted from
only
one cause
-
carcinoma
of
the lung. The issue, therefore, i s whether the
.videnc. was
suff icient for the
jury to reasonably allocate the
two
precipitating factors
as
sources
of the lung
cancer.
Concededly
no
testimony
by any
of
the
.xperts
assigned
aath.matical
percentages to
. i the r cause.
Not surprisingly, as
in many cas
of th is natur. , the exp.r ts ' opinion.
lacked
unanimity.
Dr. Rubin, p la in t i f f s expert, tes t i f ied that
tobacco
smoke and asb.stos
act
synergist ical ly
to
cause cancer.
e noted
that in nonsmokers cancer
of
the lung is
rare.
conversely, Dr.
Rubin said,
smoking
by
i t s e l f
produce.
cancer of the
lung.
e
stated
that the
r isk
of
cancer
to
a sixty
pack-y.ar
smok.r is
f i f t .en to twenty
times that
of a nonsmoker. In nonsmokers
exposed to asbestos,
a
r i .k of cancer is
moderately increased
th r
to
fourfold.
However when a
person
smokes
tobacco
and
inhal
a.b o . , the
combination i
ravaging and
the r isk of
g. t t ing
cancer
of
the lung become. a.tronomic.
On
the other hand, Dr.
Cooper, a pathologi.t
cal l .d
by
defendant,
opined
that a synerqist ic . f f . c t occurs only
in
.aok . r . exposed to hiVh l . ve l . of
be. to. . On.n umption
that d .c .d.nt
w.s
.xposed
to
low
or
aod.rat .
qu.n t i t i
of
a.b
o . and smok.d a pack and a half of c igar . t t a
day,
Dr.
Coop.r
. t . t . d
t h . t
the
r i .k
incre
ed ten
times the odd. for a
non.moking, non.xpo d p.r .on. Dr.
Coop.r al .o
r t .d that
the
incr d
r i .k
i t .o
body had low to aoderat. do.e.
of
asbestos
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w.s negligible,
not s t . t i s t ic . l ly
s ignif ic .nt
over the
nonsmoking,
non.xposed
person. But i f a person h.d heavy
.xposure to
asbestos
and
h.d smoked
for sixty pack
years, the
incr.ased
r isk
over
that
of
nonsmoking,
nonexposed
persons
would
b . about f i f ty to . ix ty t i . e . gre. ter . A .econd defense
expert,
Dr. Ep.t . in, concurred, viewing the d.cedent 's condition as
caus.d s o l l ~ by
cigaret te
oking.
On
this r .cord, we cannot say that no r.a.onable basis
existed
for determining the
contribution
of cigaret te smoking to
the
cancer
suffered
by
dec.dent.
Indeed,
the
jury s
at tr ibut ion
of c.use to cigarette smoking appears to
f a l l o n
the
moderate
. ide.
Moreov.r, we note t h . t counsel
for
pl . in t i f f
conceded
that i f we rem.nd for t r i a l
on
l iabi l i ty , the defense
will
be
permitted to ra i .e
the
i ue of
cigarette
smoking a . evidence of
the d.c .d .n t . n.gligence.
In
th . t ca
apportionment t
dam.g.. would
l ikely
res t on the
.xper t
evidence
.dduced
to
a
gn
cau.ation
of
the disease. w
cannot
say
tha t
the
.videnc
of
record would be
inadequate
to .ub . i t to a
jury.
In
sua,
we
conclud. that
the
evidence
wa.
suff ic ient
to di . t inqui .h
th is
ca.e
from
Martin
I I ,
so
that
the
holding ot the s ta te .upr court i . not
controllinq
h. r
Con.equently, on
the
proration i ue we will affirm the order of
the
di . t r ic t court ba.ed on
the
ju ry . an.wer. to
interrogatori
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There
are,
however, two other aa t t . r s w. must address.
As not.d
ear l i . r
the
dis t r i c t
court
rul .d
that the Pennsylvania
Uniform Contribution mong Tort-feasors Act required that
judqment
be entered in favor
of the
non-set t l ing
def.ndants.
According
to
. t a te
ease
law
in
effect
when
the
d is t r i c t
court
acted, no
further
suas
were
payable by the non-settl ing
defendants to plaint i f f i f she r .ceiv.d
aore
through s.t t lement
than the amount
awarded
by a jury.
After
the dis t r ic t court entered i t s order, the state
supreme
court
reversed i t s
previous decisions and held that a
prorata
release by one defendant works only a proportionate
r . l
of non-sett l ing d.fendants. Charles v.
Giant
Eagle
Mtts. , 5 3 Pal 474, 476, 522 A.2d 1, 2
(1987).
I f the amount
r.ceived from the s . t t l ing defendant is aore than a
jury
later
determin.s i
du., the plaint i f f
may r . ta in
the
excess.
Only a
prorata share of the
se t t l
ent, not
the actual
amount
paid,
may
be
d.duct.d fro. the jury v.rd ic t .
In the case
a t
hand, therefore,
the
jury
award must
be
reduced only by
Turner Newall's prorata
ahare
of l iab i l i ty not
by
the
95,000 s . t t lement
aaount.
Cons.qu.ntly,
in
vi.w
of
the
reviaion of
atate law,
the judqa.nt for
defendanta
auat
be
vacated.
I t
reaains
to
be
d.terained
which,
i f
any,
of
the
r .aaining d.fendants are
l iable to plain t i f f . Only
after
that
finding will
i t b .
possible
to decide i f the 85,6000 award is to
be
aolded,
.nd i f so, to what .x tent .
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Whether delay da.a9's
are due under Pennsylvania
Rule
of civi l
Proc.dur.
38 aust alao await a rul nq on l iabi l i ty
Ia Craig y. Mage. Memorial
Rehabili tat ion
Center, 512 Pat
60,
S15
A.2d
1350 1986)
(each
example
of d.lay damaq.s
muat be taken
up
a t
a
a.parat . h.arin;) .
Accordingly,
the
judgm.nt
in favor of d.fendants is
vacated and the caa.
will
b . remanded for a
determination
of
l iabi l i ty
Th. findinq
of the plaintiff dama9'. in the amount
of
$85,600 will b.
affirmed.
TO
THE
CLERK:
Please f i le the
foreqoin;
opinion.