Opinion

Greenleaf v. Garlock, Inc.

174 F.3d 352
1999 U.S. App. LEXIS 7927

Court: Court of Appeals for the Third Circuit
Filed: Apr 26, 1999
Author: Stapleton
On the bench: Stapleton, Roth, Longobardi
Cited by: 27 cases
Authority: More cited than 74.2%

This Court “review[s] the District Court’s decisions regarding jury instructions for abuse of discretion.” (citing Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184 , 191 (3d Cir.1990))

How later courts described this case

This Court “review[s] the District Court’s decisions regarding jury instructions for abuse of discretion.” (citing Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184 , 191 (3d Cir.1990))
“To determine the preclusive effect of [the plaintiff’s] prior state action we must look to the law of the adjudicating state.”

Written by the judges who cited it.

The opinion

Opinions of the United

1999 Decisions States Court of Appeals

for the Third Circuit

4-26-1999

Greenleaf v. Garlock Inc

Precedential or Non-Precedential:

Docket 97-1820

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Filed April 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-1820 and 97-1821

CHARLES GREENLEAF, JR., ALTERNATE EXECUTOR OF

THE ESTATE OF CHARLES GREENLEAF, SR.,

DECEASED; NAOMI GREENLEAF, IN HER OWN RIGHT

GARLOCK, INC.; FIBREBOARD CORPORATION; CELOTEX

CORPORATION; OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO.; EAGLE-PICHER

INDUSTRIES, INC.; JOHN CRANE-HOUDAILLE, INC.; A.W.

CHESTERTON; SEPCO CORP.; UNIROYAL, INC.;

OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO.

Third-Party Plaintiffs

HOPEMAN BROTHERS, INC.; COMBUSTION

ENGINEERING, INC.; ANCHOR PACKING CO., INC.;

ARMSTRONG WORLD INDUSTRIES, INC.; GREEN TWEED

& CO., INC.; MELRATH GASKET COMPANY, INC.;

MELRATH BASKET HOLDING CO., INC.;

PARS MANUFACTURING CO.,

Third-Party Defendants

Owens Corning, Appellant,

No. 97-1820

CHARLES GREENLEAF, JR., ALTERNATE EXECUTOR OF

THE ESTATE OF CHARLES GREENLEAF, SR.,

DECEASED; NAOMI GREENLEAF, IN HER OWN RIGHT

GARLOCK, INC.; FIBREBOARD CORPORATION; CELOTEX

CORPORATION; OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO.; EAGLE-PICHER

INDUSTRIES, INC.; JOHN CRANE-HOUDAILLE, INC.; A.W.

CHESTERTON; SEPCO CORP.; UNIROYAL, INC.;

OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO.

Third-Party Plaintiffs

HOPEMAN BROTHERS, INC.; COMBUSTION

ENGINEERING, INC.; ANCHOR PACKING CO., INC.;

ARMSTRONG WORLD INDUSTRIES, INC.; GREEN TWEED

& CO., INC.; MELRATH GASKET COMPANY, INC.;

MELRATH BASKET HOLDING CO., INC.;

PARS MANUFACTURING CO.,

Third-Party Defendants

Garlock, Inc., Appellant,

No. 97-1821

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 90-cv-01557)

District Judge: Honorable Marvin Katz

Argued September 15, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and

LONGOBARDI,* District Judge

(Opinion Filed: April 26, 1999)

_________________________________________________________________

* Honorable Joseph J. Longobardi, Senior United States District Judge

for the District of Delaware, sitting by designation.

Catherine N. Jasons

Robert N. Spinelli

W. Matthew Reber (Argued)

Kelley, Jasons, McGuire &

Spinelli

1617 John F. Kennedy Boulevard

Suite 1400

Philadelphia, PA 19103

Attorneys for Owens Corning

Appellant in No. 97-1820

Fredric L. Goldfein (Argued)

David C. Weinberg

Deborah M. Knight

Goldfein & Joseph

111 South 15th St., 17th Fl.

Philadelphia, PA 19102

Attorneys for Garlock, Inc.

Appellant in No. 97-1821

Martin Greitzer (Argued)

Lee B. Balefsky

John M. Mason

Greitzer & Locks

1500 Walnut Street, 20th Floor

Philadelphia, PA 19102

Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Garlock, Inc. ("Garlock") and Owens Corning Fiberglas

Corp. ("Owens") appeal the District Court's orders denying

their motions to alter or amend a judgment holding them

liable for Charles Greenleaf, Jr.'s injuries in this strict

liability asbestos products action. We address six of the

issues tendered for resolution. Appellants argue that: (1)

Pennsylvania's "one satisfaction" rule precludes Greenleaf's

entire federal action; (2) issue preclusion prevents

relitigation of damages in federal court; (3) the District

Court's jury instructions inadequately informed the jurors

regarding Pennsylvania law; (4) inflammatory statements by

plaintiffs' counsel prejudiced the jury; (5) there was

insufficient evidence to support the jury's finding of liability

on the part of Garlock; and (6) the jury's verdict absolving

the non-appearing defendants of liability was against the

clear weight of the evidence.1

We agree with the appellants that issue preclusion

prevented relitigation of damages in this action and that a

new trial is required to consider the non-appearing

defendants' liability. We find appellants' remaining claims

unavailing. Accordingly, we will reverse in part and affirm

in part the District Court's orders.

I. Background

Naomi and Charles Greenleaf filed this diversity action in

March, 1990, against ten defendants, including Owens and

Garlock, both manufacturers of asbestos products. The

complaint alleged that occupational exposure to asbestos

products produced, or used by, the various defendants had

caused Mr. Greenleaf to contract mesothelioma, a cancer

caused exclusively by asbestos inhalation. Mr. Greenleaf

sought damages for pain and suffering, and Mrs. Greenleaf

sought damages for loss of consortium. Appellants filed

answers denying responsibility and asserted crossclaims for

contribution against all co-defendants.

Two months after filing their federal action, the

Greenleafs filed a state action in the Delaware County

Court of Common Pleas against five Pennsylvania

defendants alleging identical claims. Unfortunately, Mr.

Greenleaf died from mesothelioma soon thereafter, and Mrs.

Greenleaf pursued his federal and state claims as executrix

of his estate. In July, 1991, the Judicial Panel on

Multidistrict Litigation stayed Greenleaf's federal action

and transferred it, along with other pending federal

asbestos related personal injury actions, to Judge Weiner in

_________________________________________________________________

1. Our resolution of these issues makes it unnecessary to address

appellants' arguments (1) that the award for loss of consortium was

excessive, and (2) that the judgment must be altered to set-off the

Manville Trust's share of the liability for Greenleaf's injuries.

United States District Court for the Eastern District of

Pennsylvania.

While the federal action was stayed, Greenleaf pursued

her state action, which proceeded to a reverse bifurcated

trial in January 1995. Under this format, damages were

considered in Phase I and liability in Phase II. The jury

returned a Phase I verdict assessing damages of $151,870

for the estate, and $37,500 for loss of consortium.

Greenleaf filed a motion for additur. Prior to

commencement of Phase II, however, Greenleaf settled with

the two non-bankrupt Pennsylvania defendants and

executed releases in their favor. The record does not

disclose the settlement terms. Pursuant to Greenleaf's

request, the Court of Common Pleas marked the state

action "settled, discontinued and ended" on January 24,

1995.

Two years later, Greenleaf reactivated this federal action.

Appellants filed motions for summary judgment contending

that Pennsylvania's "one satisfaction" rule barred

relitigation of Greenleaf's asbestos claims in federal court,

and alternatively that issue preclusion prevented

relitigation of damages. The District Court denied both

motions. Once again, trial proceeded in a reverse bifurcated

format. Owens and Garlock were the only defendants to

appear and actively participate in the trial.2 The jury's

Phase I verdict fixed damages at $250,000 for the estate

and $1.6 million for loss of consortium. Greenleaf's trial

presentation in Phase II focused primarily upon

establishing their liability for Mr. Greenleaf's injuries.

Appellants also presented evidence to prove the non-

appearing defendants' liability on their crossclaims. The

jury's Phase II verdict found Owens and Garlock exclusively

liable for those damages and absolved all non-appearing

defendants of liability for Greenleaf's injuries.

Appellants filed separate post verdict motions requesting

judgment notwithstanding the verdict, a new trial,

_________________________________________________________________

2. The District Court granted defendants John Crane Inc., Chesterton,

Inc., and SEPCO's motions for summary judgment dismissing them from

the action. The remaining defendants (Johns-Manville, Owens-Illinois,

Uniroyal, Fireboard, and Hopeman Brothers) did not appear at trial.

remittitur, and modification of the judgment. These motions

asserted numerous grounds for relief including claims that

Greenleaf 's prior state settlement had preclusive effect

upon this subsequent federal action, and that a new trial

was required on appellants' crossclaims regarding the non-

appearing defendants' liability. Owens and Garlock appeal

from the District Court's orders denying these motions.

II. Discussion

A. Preclusive Effect of the Prior State Litigation

Appellants claim that Pennsylvania's "one recovery" rule

barred Greenleaf 's entire action, and alternatively, that

Pennsylvania's doctrine of issue preclusion estopped

Greenleaf from relitigating damages in federal court. To

determine the preclusive effect of Greenleaf's prior state

action we must look to the law of the adjudicating state.

See Huck v. Dawson, 106 F.3d 45, 48 (3d. Cir. 1997);

O'Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062, 1064 (3d

Cir. 1991); Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir.

1988). We must give the acts of Pennsylvania's courts the

same full faith and credit in federal court that they would

enjoy in Pennsylvania's courts. See Gregory, 843 F.2d at

116 (citing 28 U.S.C. S 1738). Because the District Court's

application of these doctrines solely involves questions of

law our review is plenary. See Huck, 106 F.3d at 48;

O'Leary, 923 F.2d at 1065.

1. Pennsylvania's "One Satisfaction" Rule

Under Pennsylvania law:

A plaintiff who is injured at the hands of more than

one tort-feasor may sue and recover a judgment

against any one or all of the tort-feasors and may

attempt to collect the damages awarded by the

judgment against any one or all of them. However,

although a plaintiff may obtain a judgment against

several tort-feasors for the same harm, he or she is

entitled to only one satisfaction for that harm.

Brandt v. Eagle, 602 A.2d 1364, 1367 (Pa. Super. Ct. 1992)

(en banc) (citing Thompson v. Fox, 192 A. 107 (Pa. 1937));

see Franklin Decorators, Inc. v. Kalson, 479 A.2d 3 (Pa.

Super. Ct. 1984). "[T]he `one satisfaction' rule bars a

subsequent suit against another tortfeasor only where the

prior proceedings can reasonably be construed to have

resulted in a full satisfaction of the plaintiff's claim." Frank

v. Volkswagenwerk, A.G. of W. Germany, 522 F.2d 321,

324-26 (3d Cir. 1975). Full satisfaction may arise from a

settlement with less than all tortfeasors. See id. at 326.

Determining whether a plaintiff has been fully satisfied

through a settlement, however, involves a highly factually

sensitive analysis of "the circumstances of the prior

settlement to see whether the satisfaction . . . `represent[ed]

the true value of the claim.' " Frank, 522 F.2d at 326

(quoting Blanchard v. Wilt, 188 A.2d 722 (Pa. 1963)). The

party asserting "one satisfaction," therefore, has the burden

to provide the court with record evidence of the

circumstances surrounding the settlement. The record in

this case, however, contains virtually no evidence relating

to Greenleaf 's state settlement. Because appellants have

failed to carry their burden, we cannot conclude that

Greenleaf 's federal action was barred by Pennsylvania's one

satisfaction rule.3

_________________________________________________________________

3. Appellants rely almost exclusively upon Brandt v. Eagle, 602 A.2d

1364, to support their "one satisfaction" claim. Brandt belongs to a line

of Pennsylvania cases standing for the proposition that where a plaintiff

obtains a judgment and the "judgment is marked satisfied . . .

[Pennsylvania] law presumes that full satisfaction for the harm incurred

has been received." Id. at 1367; see Hilbert v. Roth, 149 A.2d 648 (Pa.

1959) ("[W]hen the plaintiff has [a judgment] marked satisfied of record,

the common law assumption that he is satisfied may reasonably be

permitted to operate."); Frank, 522 F.2d at 326. Courts have construed

this conclusive presumption narrowly applying it only to cases where

there has been a "judgment entered as satisfied" on the docket. See

Blanchard, 188 A.2d at 725 (noting that Hilbert "must be limited to its

own factual situation"). As the District Court correctly noted, however,

"this is not a case where a judgment was adjudicated let alone satisfied."

Accordingly, we find appellants' reliance upon this line of cases

misplaced.

2. Issue Preclusion

Under Pennsylvania law, issue preclusion applies where:

(1) the issue decided in the prior adjudication wa s

identical with the one presented in the later action;

(2) there was a final judgment on the merits;

(3) the party against whom the plea is asserted wa s a

party or in privity with a party to the prior

adjudication; and

(4) the party against whom it is asserted has had a full

and fair opportunity to litigate the issue in question in

a prior action.

Dici v. Commonwealth of Pa., 91 F.3d 542, 548 (3d Cir.

1996)(citing Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996),

and Safeguard Mut. Ins. Co. v. Williams, 345 A.2d 664, 668

(Pa. 1975)). The parties agree that this is the correct

standard and that factors one, three, and four are present

in this case. They disagree, however, regarding the second

factor: whether the state jury's damages verdict is a "final

judgment."

The Pennsylvania Supreme Court consults section 13 of

the Restatement (Second) of Judgments to define "final

judgments" for purposes of issue preclusion. See Shaffer,

673 A.2d at 875. Section 13 provides:

The rules of res judicata are applicable only when a

final judgment is rendered. However, for purposes of

issue preclusion (as distinguished from merger and

bar), "final judgment" includes any prior adjudication

of an issue in another action that is determined to be

sufficiently firm to be accorded preclusive effect.

Restatement (Second) of Judgments S 13 (1982). The

comments to section 13 emphasize that issue preclusion is

applicable when it is determined "that the decision to be

carried over was adequately deliberated and firm, even if

not final in the sense of forming the basis for a judgment

already entered." Id. S 13 cmt. g.

[To require that] a final judgment in the strict sense

has been reached in the first action can involve

hardship--either needless duplication of effort and

expense in the second action to decide the same issue,

or, alternatively, postponement of decision of the issue

in the second action for a possibly lengthy period of

time until the first action has gone to a completefinish.

In particular circumstances the wisest course is to

regard the prior decision of the issue as final for the

purpose of issue preclusion without awaiting the end

judgment.

Id. Accordingly, the Restatement recognizes that the finality

inquiry focuses upon "whether the conclusion in question is

procedurally definite." Id. Section 13's comments provide a

number of factors to be considered in this regard:

(1) whether the prior decision was "adequately

deliberated and firm" and not "avowedly tentative";

(2) whether the parties were fully heard;

(3) whether the court supported its decision with a

reasoned opinion;

(4) whether the court's prior decision was subject to

appeal or was in fact reviewed on appeal.

Id. One of section 13's illustrations provides an example

particularly instructive in this appeal:

In a jurisdiction that permits "split" trials (a trial of

liability followed, if liability is found, by a separate trial

to ascertain the damages), the jury in a negligence case

finds for the plaintiff A as to liability, the defendant B

having denied his own negligence and pleaded

contributory negligence on the part of A. Under the law

of the jurisdiction, B cannot appeal at this point as

there is no judgment that qualifies as final for that

purpose; an appealable judgment would be reached

later, when, in the second phase of the trial, another

jury assessed the damages. But prior to the second

phase, the jury's verdict as to liability may be held

conclusive as to the issues of A's and B's negligence in

any other action between them in which the same

issues appear.

Id. S 13 cmt. g, illus. 3 (emphasis added).

We conclude that Greenleaf's prior state court jury

verdict on damages is a "final judgment" under section 13

and carries issue preclusive effect upon that issue in this

action. As the above-quoted illustration indicates, 4 weighing

the factors set forth in section 13's comments favors a

finding of sufficient finality in circumstances like those

before us. The parties were "fully heard" on the issue of

damages and the jury's verdict was "adequately deliberated

and firm." The jury's decision would have been appealable

following Phase II, had no settlement occurred. Pursuant to

the settlement, the Greenleafs voluntarily surrendered their

right to further review, and the dismissal order entered

pursuant to that settlement assured that the assessment of

damages was "procedurally definite" and not subject to

change. Under these circumstances, we perceive no

justification for permitting the Greenleafs to relitigate the

amount of their damages.5

The District Court concluded that the state jury's

damages verdict did not preclude relitigation of the

damages issue in federal court for two reasons. We find

both unpersuasive. First, the District Court cited our

decision in Dici v. Commonwealth of Pa., 91 F.3d 542 (3d

Cir. 1996), for the proposition that settlement following a

reverse bifurcation verdict on damages is not an

adjudication. Dici does not stand for that proposition,

_________________________________________________________________

4. Greenleaf attempts to distinguish this illustration by arguing that it,

like the comments to section 13 generally, deals with a "same party"

situation and neither Owens nor Garlock were parties to the state

proceedings. While it is true that the comments and illustrations deal

predominantly with "same party" situations, issue preclusion in

Pennsylvania does not require identity of parties. Phillip v. Clark, 560

A.2d 777, 780 (Pa. Super. Ct. 1989) (" `There is no requirement that

there be an identity of parties in the two actions in order to invoke

[issue

preclusion].' " (quoting Mellon Bank v. Rafsky, 535 A.2d 1090, 1093 (Pa.

Super. Ct. 1987))); cf. Burlington Northern R.R. Co. v. Hyundai Merchant

Marine Co., Ltd., 63 F.3d 1227, 1232 (3d Cir. 1995).

5. We observe that our conclusion is consistent with the modern trend to

"relax[ ] traditional views of the finality requirement by applying issue

preclusion to matters resolved by preliminary rulings or to

determinations of liability that have not yet been completed by an award

of damages or other relief." Wright et al., Federal Practice and

Procedure S 4434 at 321 (1981 & 1998 Supp.).

however. In Dici this court considered whether the factual

findings of a state workmen's compensation referee had

preclusive effect in a subsequent federal court action for

violations of Title VII and state antidiscrimination statutes.

Id. at 545-47. The case involved neither a reverse bifurcated

proceeding, nor a jury verdict, nor a settlement. Id. Instead,

we determined that issue preclusion did not apply because

the issues presented in the two proceedings were not the

same. Id. at 549-50.

The District Court's second reason for refusing to apply

issue preclusion was the preliminary verdict's lack of

immediate appealability. While noting that appealability is

only a factor for determining the appropriateness of issue

preclusion, the Court relied upon section 28(1) of the

Restatement (Second) of Judgments for the proposition

that issue preclusion did not apply because Greenleaf

"could not, as a matter of law, have obtained review of the

preliminary verdict." We find the District Court's reliance

upon the preliminary verdict's appealability misplaced.

Section 28 establishes various exceptions to the doctrine

of issue preclusion. It provides in relevant part:

Although an issue is actually litigated and determined

by a valid and final judgment, and the determination is

essential to the judgment, relitigation of the issue in a

subsequent action between the parties is not precluded

in the following circumstances.

(1) The party against whom preclusion is sought

could not, as a matter of law, have obtained review of

the judgment in the initial action.

Restatement (Second) of Judgments S 28 (1982).

According to the comments, review is "unavailable as a

matter of law" where "the controversy has become moot, or

because the law does not allow review of the particular

category of judgments." Id. S 28 cmt. a. The comments

further provide that the exception does not apply where

"review is available but not sought." Id.

While the Pennsylvania Supreme Court has adopted

section 28, Clark v. Troutman, 502 A.2d 137 (Pa. 1985), it

has not specifically addressed the scope of the section 28(1)

exception. This court, however, has addressed similar

issues regarding the significance of appealability for

purposes of issue preclusion under the Restatement. Our

decisions hold that decisions not final for purposes of

appealability may nevertheless be sufficientlyfinal to have

issue preclusive effect. For example, in In re Brown, 951

F.2d 564, 569-70 (3d Cir. 1991), we concluded that a state

court's partial summary judgment establishing a debtor's

liability in a mortgage foreclosure action was sufficiently

final to have issue preclusive effect in a subsequent

bankruptcy proceeding, even though the judgment was not

final for purposes of appealability because the amount due

on the mortgage remained to be determined in state court.

We explained:

Unlike claim preclusion, the effectiveness of issue

preclusion, sometimes called collateral estoppel, does

not require the entry of a judgment, final in the sense

of being appealable. . . . `Finality for purposes of issue

preclusion is a more `pliant' concept than it would be

in other contexts.' Finality `may mean little more than

that the litigation of a particular issue has reached

such a stage that a court sees no really good reason for

permitting it to be litigated again.'

Id. at 569 (quoting Dyndul v. Dyndul, 620 F.2d 409, 412 &

n.8 (3d Cir. 1980)). We determined that issue preclusion

was justified observing that (i) the party against whom

issue preclusion was asserted was represented by counsel

in the prior state action, (ii) hearings were held in state

court, (iii) the trial court's summary judgment order was

not "tentative," and (iv) allowing relitigation in bankruptcy

court would waste judicial resources. Id. at 570.

Similarly, in Burlington Northern R.R. v. Hyundai

Merchant Marine Co., 63 F.3d 1227, 1233 n.8 (3d Cir.

1995), we found a denial of summary judgment sufficiently

final to justify issue preclusion in a subsequent action even

though it was not immediately appealable as a matter of

law. We noted that (i) the party was represented by counsel

in the prior action, (ii) the issues were genuinely contested,

and (iii) the lower court's denial of summary judgment was

not "tentative." See id. These elements are also satisfied in

this case. In the prior state action (i) Greenleaf was

represented by counsel, (ii) the issue of damages was

genuinely contested in a jury trial, (iii) the verdict was not

tentative, and (iv) allowing damages to be relitigated in

federal court clearly wasted judicial resources.

We do not attempt to fully chart section 28(1)'s scope in

this case. We simply hold that reading section 13 and

section 28(1) together, we find that the lack of immediate

appealability of Greenleaf's preliminary state damages

verdict does not operate to prevent its issue preclusive

effect in this case. Appellate review would have been

available had the Greenleafs not chosen to settle. 6 Allowing

Greenleaf to relitigate damages in federal court was

unnecessarily duplicative and a waste of valuable judicial

resources -- the precise evils that issue preclusion is

designed to combat. See Shaffer, 673 A.2d at 875 ("[Issue

preclusion] relieve[s] parties of the cost and vexation of

_________________________________________________________________

6. While we find it unnecessary to define section 28(1)'s scope to resolve

this case, we observe that courts typically apply it to the narrow set of

judgments where a party has no right to appeal at any time because

such appeals are wholly unavailable "as a matter of law." See Wright et

al., Federal Practice and Procedure S 4433 at 315 (1981 & 1998

Supp.)("[Courts must distinguish] between decisions that could not ever

be appealed and decisions that will become eligible for appeal in the

future. Relaxation of the traditional views of finality has created the

opportunity to rest preclusion on a decision that cannot be appealed at

present but may be appealed and reversed in the future."). For example,

some courts have applied section 28(1) to "[a] District Court's

jurisdictional findings incident to remand" because remand orders are

wholly unappealable as a matter of law under 28 U.S.C. S 1447(d). See,

e.g., Nutter v. Monongahela Power Co., 4 F.3d 319, 322 (4th Cir. 1993);

Southern Leasing Corp. v. Tufts, 804 P.2d 1321, 1323 (Ariz. Ct. App.

1991). Similarly, other courts have applied section 28(1) to allow a party

who generally prevailed in a prior judgment, but lost on certain issues,

to relitigate the issues upon which they were unsuccessful because the

party was " `not aggrieved and could not appeal the judgment [as a

matter of law].' " See, e.g., Lombardi v. City of El Cajon, 117 F.3d 1117,

1122 (9th Cir. 1997) (quoting Anderson-Cottonwood Disposal Serv. v.

W.C.A.B., 135 Cal.App.3d 326, 332, 185 Cal.Rptr. 336, 340 (1982)); In re

DES Litig., 7 F.3d 20, 24 (2d Cir. 1993) see also Hernandez v. Region

Nine Housing Corp., 684 A.2d 1385, 1393 (N.J. 1996)(section 28(1)

prevented issue preclusion of EEOC's adverse decision on Title VII claim

because no appellate review of EEOC decision exists). The Greenleafs'

preliminary verdict does not fall into this category of cases.

multiple lawsuits, conserve[s] judicial resources, and, by

preventing inconsistent decisions encourage[s] reliance on

adjudication.").

B. Adequacy of the Jury Instructions

Appellants assert that the District Court's jury

instructions inadequately informed the jurors regarding

Pennsylvania law on asbestos related injuries. Our

standard of review over this issue is mixed. We exercise

plenary review to determine whether the District Court's

jury instructions misstated Pennsylvania law. See Woodson

v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1997). In the

absence of a misstatement, however, we review the District

Court's decisions regarding jury instructions for abuse of

discretion. See Bhaya v. Westinghouse Elec. Corp., 922 F.2d

184, 191 (3d Cir. 1990) ("Unless a trial judge misstates the

law, the judge's rulings on points for charge may be

reversed only if the judge committed an abuse of

discretion.").

Appellants raise two arguments to persuade us that the

District Court's instruction misstated Pennsylvania law.

First, they both claim that the court failed to specifically

instruct the jury regarding the Eckenrod "frequency,

regularity and proximity" test, which they claim is the

exclusive rule in asbestos cases under Pennsylvania law.

Second, Garlock contends that the court erred in not

submitting its proposed "de minimis" exposure defense to

the jury.

The District Court's instruction in this case charged the

jury:

. . . [F]ocus on the asbestos products manufactured

and distributed by each particular defendant. . . .[If]

the product in [sic] particular of a defendant was

defective in the sense that it lacked an adequate

warning, the defendant is liable if that condition is the

legal cause of the harm, that is if it is a substantial

factor in bringing about the harm to Charles Greenleaf.

. . . A substantial factor is a real actual factor even

though the result may be unusual, unforseen,

unforeseeable or unexpected but it is not an imaginary

or fanciful factor having no connection or only an

insignificant connection with the injury. There may be

more than one substantial factor in bringing about the

harm suffered by the plaintiff. . . . What this means in

this case is that for a defendant to be liable, plaintiffs

must show by a fair preponderance of the evidence that

Charles Greenleaf was exposed to that defendant's

product and that such exposure was a substantial

factor in bringing about his injuries.

(JA 434-443) (emphasis added).

The District Court's charge thus told the jury that the

plaintiffs had the burden of proving proximate cause and

explained that concept to them. It further cautioned that

the jury must conduct a separate analysis of the evidence,

and make a separate decision on, the proximate cause

issue with respect to each defendant. The District Court's

charge on these points is entirely consistent with our

understanding of the Pennsylvania case law in asbestos

cases.

We do not understand the appellants to contend that

anything said by the District Court is inconsistent with

Pennsylvania law. Rather, they contend that the Superior

Court in Eckenrod v. GAF Corp., 544 A.2d 50, 53 (Pa.

Super. Ct. 1988), held that any charge in an asbestos case

is deficient if it fails specifically to require evidence of "the

frequency of the use of the product and the regularity of

plaintiff's employment is proximity thereto."

In Eckenrod, the Pennsylvania Superior Court affirmed a

grant of summary judgment in favor of various asbestos

manufacturers because the plaintiff had failed to provide

sufficient evidence of the decedent's exposure to the

defendants' products. The Court summarized the principles

governing liability in an asbestos action:

In order for liability to attach in a products liability

action, the plaintiff must establish that the injuries

were caused by a product of the particular

manufacturer or supplier. 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. 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

products use. Summary judgment is proper when the

plaintiff has failed to establish that the defendant's

products were the cause of plaintiff's injury.

* * *

We acknowledge that the facts establish that the

decedent on occasion was exposed to asbestos; there is

no evidence, however, as to the regularity or nature of

decedent's contact with asbestos. Moreover, there is no

testimony establishing that Mr. Eckenrod worked with

asbestos supplied and/or manufactured by Porter or A-

Best or any of the other appellees. The mere fact that

appellees' asbestos products came into the facility does

not show that the decedent ever breathed these specific

asbestos products or that he worked where these

asbestos products were delivered.

Id. at 53.

We do not read Eckenrod as establishing any additional

or special requirements for jury instructions in asbestos

cases. Rather, we read it as a straightforward application of

traditional principles of summary judgment and proximate

cause law to a factual pattern, various permutations of

which arise frequently in asbestos cases.

Accordingly, it is not surprising to us to find post-

Eckenrod opinions in which the Superior Court has

sustained jury verdicts where the court's discussions did

not contain the "frequency, regularity and proximity" test

appellants urge as essential.7See, e.g., Juliano v. Johns-

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7. We find further support for our conclusion in Jobe v. W.P. Metz

Refining, 664 A.2d 1015 (Pa. Super. Ct. 1995), where the Superior Court

extended the Eckenrod principles of asbestos liability to product

liability

cases involving cadmium, another carcinogenic substance. The court

discerned from the "Eckonrod line of cases" that an asbestos plaintiff

must prove three elements: (i) that the employee/decedent was at a

particular work site, (ii) that the employee/decedent was exposed to

carcinogenic-containing products at that site, and (iii) that a

defendant's

carcinogenic-containing products was [sic] at the that particular work

site at or about the same time as the employee/decedent. Id. at 1019.

Notably absent from the court's summary of asbestos liability law was

the Eckenrod "frequency, regularity and proximity" formula.

Manville Corp., 611 A.2d 238, 239 (Pa. Super. Ct. 1992);

Ottavio v. Fireboard Corp., 617 A.2d 1296, 1298 (Pa. Super.

Ct. 1992); Lilley v. Johns-Manville Corp., 596 A.2d 203, 209

(Pa. Super. Ct. 1991). We find Lilley v. Johns-Manville Corp.,

596 A.2d 203, particularly instructive because it involved

facts strikingly similar to this appeal. There, as here, the

Superior Court, considered a challenge to the adequacy of

jury instructions in an appeal from a judgment in favor of

an asbestosis plaintiff. The trial court instructed the jury

that the plaintiff must prove that the defendant's product

was a "substantial factor in bringing about the harm" and

that:

plaintiff must present evidence which establishes that

he inhaled asbestos fibers which came from the

manufacture's [sic] product. It is not enough simply to

show that the product was delivered to the work place.

He must show that he actually worked in the vicinity

of the product and that he inhaled asbestos fibers from

that product . . . Remember there may be several

substantial factors. There are no requirements [sic]

there be a single substantial factor. As long as youfind

that there is a real factor that's not something fanciful

or something imaginary, but something that came

about because of what happened.

Id. The Superior Court concluded that this"jury charge

adequately comports with the mandate of Eckenrod and

that the trial court was not required to provide any more

precise explanation than that actually given." Id. at 210.

While relying heavily upon Eckenrod the court did not

invoke a "frequency, regularity and proximity" test. See id.

at 209.

In the absence of a misstatement, we review the District

Court's jury instructions for abuse of discretion. We find no

abuse of discretion in the District Court's refusal to include

appellants' proposed "frequency, regularity, and proximity"

instructions.8

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8. We find no merit in appellants' claim that the District Court's Phase

II verdict form was patently insufficient and oversimplified. Appellants

submitted proposed verdict forms to the court, each posing three distinct

We similarly find Garlock's assertion that the District

Court misstated Pennsylvania law by omitting Garlock's

proposed "de minimis" exposure defense from the jury

instruction unpersuasive. Again, we take guidance from

Lilley where the Superior Court rejected a virtually identical

argument stating that it was "unaware of any requirement

of Pennsylvania law that the jury charge must include an

instruction on de minimis exposure." Id. at 210. We have

similarly found no such requirement, and conclude that the

District Court did not err by refusing this instruction.

C. Attorney Misconduct

Appellants next contend that a new trial is required

because allegedly inflammatory statements made by

Greenleaf 's counsel in closing arguments prejudiced the

jury. We review District Court decisions whether to grant a

new trial because of alleged attorney misconduct for abuse

of discretion. Blanche Road Corp. v. Bensalem Township, 57

F.3d 253, 264 (3d Cir. 1995); Fineman v. Armstrong World

Indus. Inc., 980 F.2d 171, 207 (3d Cir. 1992). This is

because we recognize that " `[i]n matters of trial procedure

. . . the trial judge is entrusted with wide discretion

because he [or she] is in a far better position than we to

appraise the effect of the improper argument of counsel.' "

Fineman, 980 F.2d at 207 (quoting Reed v. Philadelphia

Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d

Cir. 1991)). A new trial may be granted only where the

improper statements "made it `reasonably probable' that the

verdict was influenced by prejudicial statements." Id. (citing

Draper v. Airco Inc., 580 F.2d 91, 94 (3d Cir. 1978)).

Appellants point to three alleged incidents of misconduct.

First, they argue that Greenleaf 's counsel suggested that

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questions. The District Court, however, fashioned its own form, which

presented one question: "Are the following defendants liable?" A list of

the defendants followed the question. As we have concluded above, the

court's jury instructions adequately covered the substantive law's

requirements regarding liability. They were relatively straightforward and

it was not an abuse of discretion for the District Court to refuse to

repeat them in the verdict form.

Greenleaf would not recover anything unless the jury

returned a verdict against the defendants. This was

allegedly improper and prejudicial because Greenleaf had

already received compensation for their injuries in the state

settlement. Second, Garlock contends that counsel

distracted the jury's attention from the relevant issues by

irrelevant commentary on the failure of the absent

defendants to defend. Finally, appellants complain that

Greenleaf's counsel suggested to the jury that a verdict for

plaintiffs would "send a message to the folks at Owens."9

These comments do not approach the level of attorney

misconduct found to prejudice the jury in our precedents.

See, e.g., Blanche Road, 57 F.3d at 264; Fineman, 980 F.2d

at 207-10; Draper, 580 F.2d at 95. We conclude that it is

not reasonably probable that the verdict was prejudicially

influenced by Greenleaf 's counsel's remarks, and we find

no abuse of discretion in the District Court's denial of

appellants' requests for a new trial on this ground.

D. Denial of Motions For a New Trial

Finally, appellants contend that the District Court erred

when it denied their motions for a new trial. They present

two arguments. First, Garlock presents a classic

insufficiency of the evidence argument claiming that the

evidence does not support a finding that it is liable for

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9. Owens Corning cites Foster v. Crawford Shipping Co., Ltd., 496 F.2d

788, 792 (3d Cir. 1974), for the proposition that inviting the jury to

"send a message" is by itself outrageous enough to warrant a new trial,

particularly in a strict liability case where conduct is not at issue. We

find Foster unhelpful. Foster did not erect a per se rule against

invitations to a jury to "send a message", nor did it involve products

liability. In Foster, we granted a new trial because the jury had been

prejudiced by counsel's improper remarks regarding (i) the disparity of

wealth between parties (ii) the defendant's foreign ownership, and (iii)

the

plaintiff 's potential burden upon the community if the defendant was

not found liable. See id. at 792. We have relied upon Foster to hold that

it is improperly prejudicial for counsel to appeal to financial disparity

between parties before the jury. See Draper, 580 F.2d at 95. Greenleaf 's

counsel did not emphasize the parties' financial disparity and none of

the remaining Foster factors are present in this case. Accordingly, we

find Owens Corning's argument unavailing.

Greenleaf 's injuries. Second, both appellants claim that the

verdict absolving the non-appearing defendants is against

the overwhelming weight of the evidence. The Greenleafs

respond that appellants are precluded from asserting these

claims under our holding in Yohannon v. Keene Corp., 924

F.2d 1255, 1262 (3d Cir. 1991).

1. The Verdict Against Garlock

We cannot reach the merits of Garlock's first claim

because it did not move for judgment as a matter of law

under Rule 50 before the jury retired to deliberate. It is well

settled that a party who does not file a Rule 50 motion for

judgment as a matter of law at the end of the evidence is

not thereafter entitled to have judgment entered in its favor

notwithstanding an adverse verdict on the ground that

there is insufficient evidence to support the verdict. See

Lowenstein v. Pepsi-Cola Bottling Co., 536 F.2d 9, 11 (3d

Cir. 1976). However, "the failure to move for a directed

verdict at the close of all evidence does more than limit an

aggrieved party's remedy to a new trial. In this Circuit, it

wholly waives the right to mount any post-trial attack on

the sufficiency of the evidence." Yohannon, 924 F.2d at

1262; see also Stadtlander Drug Co., Inc. v. Brock Control

Sys. Inc., 174 F.R.D. 637, 641 (W.D. Pa. 1997)(refusing to

consider Rule 59 motions for a new trial based upon

insufficiency of the evidence where the movant did not

move for judgment as a matter of law before the jury retired

to deliberate). The record does not indicate that Garlock

moved for judgment as a matter of law; its failure to do so

operates as a waiver with fatal consequences to its

insufficiency of the evidence claim in this appeal.10

2. The Verdict in Favor of the Non-Appearing Defendants

Appellants also claim that the jury's verdict is against the

clear weight of the evidence to the extent it absolved the

non-appearing defendants of liability. They ask for a new

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10. Garlock claims that its proposed jury instruction number one was a

request for judgment as a matter of law. The instruction cannot be so

construed.

trial at which they will once again seek a judgment in their

favor on their cross-claims against the non-appearing

defendants. We disagree with Greenleaf 's suggestion that

Yohannon precludes our consideration of this claim.

A court may order a new trial upon the motion of a party

or sua sponte where there is insufficient evidence to

support the verdict or where the verdict was against the

weight of the evidence. Fed. R. Civ. P. 59(a)-(d); Wright &

Miller, Federal Practice & Procedure S 2806 (1995).

Yohannon circumscribes a court's authority to act upon

such a motion when a party is arguing that the evidence is

insufficient to support a verdict against it, and it is,

accordingly, entitled to judgment in its favor as a matter of

law. Assuming that there is no substantial evidence to

support the verdict, such an argument can be as

successfully argued at the close of all the evidence, and

Yohannon takes the position that a failure to advance it at

that time waives the right to a new trial based on

insufficiency of the evidence.

The appellants here are not arguing insufficiency of the

evidence, however. They acknowledge, as they must, that

they had the burden of proof on their cross-claims, and

they do not take the extreme position that the state of the

record entitles them to judgment, i.e., that evidence the

jury was not at liberty to reject dictated a judgment in their

favor.11 Rather, they take the position that the court,

utilizing its authority under Rule 59(a), should critically

evaluate the evidence and exercise its discretion in favor of

a new trial because the probative evidence in their favor as

contrasted with that opposed is overwhelming. This is not

a position that can be taken in support of a Rule 50 motion

for judgment as a matter of law. Wright & Miller, S 2524,

at 255-56 (indicating that a court in response to a Rule 50

motion may not consider the credibility of the witness or

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11. A litigant with the burden of persuasion is entitled to judgment as a

matter of law at the close of the evidence only in the very rare case

where a decision in its favor is mandated by evidence the trier of fact is

not at liberty to disbelieve and no inference contrary to its position can

be drawn from the undisputable facts. Wright & Miller, S 2535, at 328-

29.

the weight of the evidence and must draw all inferences in

favor of the party against whom the motion is made).

We conclude that Yohannon was not intended to foreclose

the grant of a new trial to parties in appellants' position.

Given the state of the record at the close of the evidence

they had every reason to expect that the jury, if it

understood and rationally applied the court's instructions,

would decide that they had carried their burden of

persuasion. Moreover, they were not in a position to argue

that evidence which the jury was not entitled to reject

required it to infer that the exposure to each of the

products of the non-appearing defendants was a

substantial factor in causing Greenleaf's mesothelioma.

Under these circumstances appellees did not waive their

rights under Rule 59 by failing to move under Rule 50 for

judgment as a matter of law.

We now turn to the merits of appellants' claim. We review

a District Court's decision whether to grant a new trial on

the basis that the verdict is against the weight of the

evidence for abuse of discretion. Roebuck v. Drexel Univ.,

852 F.2d 715, 735 (3d Cir. 1988). Deferential review is

appropriate when considering whether a verdict is against

the weight of the evidence "because the district court was

able to observe the witnesses and follow the trial in a way

that we cannot replicate by reviewing a cold record." Id.

"[N]ew trials because the verdict is against the weight of the

evidence are proper only when the record shows that the

jury's verdict resulted in a miscarriage of justice or where

the verdict, on the record, cries out to be overturned or

shocks our conscience." Williamson v. Consolidated Rail

Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).

With this deferential standard in mind we consider the

record. Five co-defendants, Johns-Manville, Owens-Illinois,

Uniroyal, Fireboard, and Hopeman Brothers, did not appear

at trial to defend against Greenleaf's claims and appellants'

counterclaims. The following uncontested evidence was

presented against them at trial. In his video taped

deposition Mr. Greenleaf described his occupational

exposure to asbestos products. He worked as a shipfitter at

Sun Ship for seven and one half years beginning in 1942.

He did not personally handle asbestos materials, but he

worked in ship hulls where asbestos dust "sift[ed] down all

the time" from asbestos containing pipe covering, mud,

cloth and paneling being used above him. He estimated

that he was exposed to asbestos products 90% of his time

at Sun Ship and specifically identified (i) Johns-Manville as

a manufacturer of the products used there, and (ii)

Hopeman Bros. as a contractor using asbestos there. Mr.

Greenleaf also worked at New York Ship for eight months

as a shipfitter and experienced similar exposure to the

same products for four of those months. This evidence thus

establishes that Greenleaf was exposed to Johns-Manville

and Hopeman Bros. asbestos for almost eight years.

In 1953, Mr. Greenleaf began working at Westinghouse

as a fabricator. He worked there, mainly building turbines,

for more than 30 years until he retired in 1986. Greenleaf

testified that, during his time at Westinghouse, he was

exposed to asbestos containing rope, cloth, block, gaskets,

and pipe covering, and personally worked with rope and

gaskets. When asked what he meant by "exposed" Mr.

Greenleaf explained:

Exposed to it because it was the same thing. They

might be working over top of you or right there next to

you and like I say with the air--there was no air

conditioning or nothing. If you need any air, you

opened an air hose someplace [sic] to give you some

air, which didn't help this situation.

(JA 478). He estimated that he was exposed to cloth one

third of his time, and block and pipe covering one quarter

of his time each. He described how asbestos dust from

block cutting permeated the air, stating that "everything

you went to get against, got against your clothes because

nobody went around cleaning these things up, you know. It

was all--it was on everything." (JA 481). Mr. Greenleaf also

noted that when the asbestos dust mixture was combined

with water to create asbestos mud "[the dust] went right up

to the air." (JA 482). When asked which manufacturers'

asbestos products were used at Westinghouse he identified,

among others, Johns-Manville and Owens-Illinois.

Additionally, in another deposition Greenleaf was asked

whether he was exposed to one manufacturer's product

more than another's during his tenure at Westinghouse. He

responded:

A: I would say Johns-Manville might have been the