# Cantrell v. GAF Corp. > Court of Appeals for the Sixth Circuit · July 26, 1993 · 999 F.2d 1007 URL: https://www.frixlaw.com/law-library/cases/9011961 ## Case - **Full name:** Robert CANTRELL and Georgia Cantrell (89-3221) Charles E. Marple and Angelina Marple (89-3231) v. GAF CORPORATION, Carey Canada, Inc. and Celotex Corporation - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** July 26, 1993 - **Citations:** 999 F.2d 1007; 1993 WL 274477 - **Precedential status:** Published - **Opinion:** Concurrence by Wellford - **Judges:** Joiner, Ryan, Wellford - **Cited by:** 153 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9011961 ## How later opinions describe it (automated extraction) - applying Daubert to uphold the admissibility of the testimony of a doctor that asbestos had caused the plaintiffs' laryngeal cancer based on the unusually high incidence of this cancer among the plant workers despite the fact that the defendants had pointed to smoking as a pos… - explaining “[w]hether cases involving the same factual and legal questions should be consolidated for trial is a matter within the discretion of the trial court.” - holding “[e]vidence of an increased risk of cancer is relevant to whether a plaintiffs fear of cancer is reasonable, as required by Lavelle ” - noting prejudice could result from consolidating cancer case with noncancer eases because jury may consider evidence relevant only to cancer case in noncancer cases ## Opinion text WELLFORD, Senior Circuit Judge, concurring. Despite my serious concern about several prejudicial factors in this case, I am persuaded by my colleagues that we should affirm, although I do so reluctantly. One of the most persuasive circumstances in reaching *1019 this decision was the failure of defendant to object to the joinder of these two causes of actions. Despite the failure of defendant to object, possibly for strategic reasons, the joinder of a case in which one plaintiff had experienced laryngeal cancer and recent removal of his voice box with another in which plaintiff had questionable causation symptoms only, comes close, in my view, to inherently prejudicial error. (Longstanding and excessive smoking habits could have caused identical injuries.) Consolidation of cases should only be permitted in this type of situation where plaintiffs allegedly suffer from the same condition and their medical prognosis is approximately similar. Otherwise, there is a great likelihood of a prejudicial spill-over effect from the more seriously ill or injured plaintiff to the other. The same jury verdict in these cases adds to this concern. 1 Consolidation which presents great risk to one side of prejudice is not justified by reason of conserving judicial time and resources. Even more troubling was the challenged testimony of plaintiffs’ expert, Dr. Kelly, about his experience in examining and observing other workers at the specific plant at which both plaintiffs had worked. Dr. Kelly was permitted, erroneously in my view, to testify about the “highly unusual” incidence (in his opinion) of laryngeal cancer among workers at the Loekland facility, which presented (to him) “stark, striking” evidence. This was akin to permitting a witness to give expert testimony against a railroad that a railroad crossing was dangerous and risky because he knew about two or three prior accidents at that location and this was “highly unusual.” (The district court may have permitted Dr. Kelly to testify that he had personally observed episodes of laryngeal cancer to persons exposed to asbestos fiber, but not connected to defendants or the particular plant in issue.) Even if relevant, in my view, this admitted testimony should have been excluded (with respect to identifying laryngeal cancer at the Loekland plant) as clearly and “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” Fed. R.Evid. 403. 2 Again, defendants’ failure to make a specific objection based on this potential prejudice persuades me to concur in the result reached despite my reservations. One further concern in this case involving a bankrupt defendant is the matter of punitive damages. Were I writing on a clean slate in this court, I would adopt the language of then Chief Judge Charles Clark of the Fifth Circuit in his dissent in Jackson v. Johns-Manville Sales Corp., 781 F.2d 394, 416, 417 (5th Cir.1986): Tens of thousands of similarly situated claimants are already seeking relief against the same defendants, and a legion of other potential plaintiffs stand in the wings, awaiting the predictable manifestations of their identical exposure. Other public and private plaintiffs seek recovery from the same defendants for costs incurred in removing asbestos materials from structures in every area of the country. The problems we face in this litigation are ones of national public policy. To respond to such policy is beyond the ability of this diversity-based court. Such policy cannot be subject to the whims of individual states because matters of national public policy have nationwide application. Since Congress has not provided a solution, the Supreme Court of the United States should have been asked to provide one. I would hope the bankruptcy court dealing with bankrupt defendants in these cases will address the concerns that punitive damage awards of this magnitude, in addition to generous compensatory (and loss of consortium) *1020 awards, to Marple and Cantrell may cause other plaintiffs later in time with similar claims against the defendants to be deprived of an opportunity to recover even compensatory damages. In addition, Marple will have the right to pursue yet another claim against Celotex if he were to develop cancer, and thus I would find his compensatory award to be excessive. 3 Finally, I join in the decision based on prejudgment interest only because defendants failed to respond to plaintiffs’ motions seeking such a recovery and, therefore, waived a defense to this claim. With these express reservations, I concur in the judgment in this case. . A good example of proper consolidation in the asbestosis context is Hendrix v. Raybestos-Manhattan, 776 F.2d 1492 (11th Cir.1985). All four plaintiffs suffered from substantially similar conditions arising out of like circumstances. Each plaintiff's award was different in Hendrix based on age, nature and progress of the illness, and other relevant factors. . This prejudicial testimony of Dr. Kelly was merely collateral in the formulation of his opinion; all the more reason it should have been excluded under Fed.R. of Evid. 403. . Interest alone on the award to Marple and his wife would exceed his annual compensation at the time he ceased employment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9011961. Public record. Not legal advice.