parker v bell asbestos 3d cir 1987

8/11/2019 Parker v Bell Asbestos 3d Cir 1987

1/9

NOT fOR puBLICATION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


2/9

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 .


3/9

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

3


4/9

(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

4


5/9

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.

5


6/9

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

6


7/9

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


8/9

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 .

8


9/9

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.

parker v bell asbestos 3d cir 1987

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