Claude Cimino v. Raymark Industries, Inc., Pittsburgh Corning Corporation and Asbestos Corporation Limited

REYNALDO G. GARZA, Circuit Judge,

specially concurring:

I write separately to concur in the excellent opinion in this case, but also to add some of my own comments and thoughts about these consolidated cases, which have burdened our judicial system for so many years. In particular, I wish to express my concerns raised by Pittsburgh Coming’s attack on Judge Parker’s ingenious but, unfortunately, legally deficient trial plan. This case is a striking example of the crisis presented by the state of asbestos litigation in our judicial system; therefore, I am also writing separately to further urge upon Congress the wisdom and necessity of a legislative solution.

Texas law simply provides no way around Pittsburgh Coming’s right to a jury trial as to causation or the requirement that causation and damages be determined as to individuals and not groups. See In re Fibreboard Corp., 893 F.2d 706, 711 (6th Cir.1990) (stating that policy choices of State of Texas in defining “the duty owed by manufacturers and suppliers of products to consumers ... are reflected in the requirement that a plaintiff prove both causation and damage.... These elements focus upon individuals, not groups.”). If Judge Parker had conducted phase II according to his plan, however, rather than replacing phase II with the phase II *336 stipulation, the only issue before us today would be the propriety of the phase III damages determinations. Of course, the majority opinion correctly explains that these damages determinations were fatally deficient under Texas law and the Seventh Amendment as to the more than 2,000 “extrapolation” cases; however, these “extrapolated” damages determinations are valuable in and of themselves as indications of an appropriate settlement range for each of the five disease categories involved.

It is clear that the enigma of asbestos litigation is not readily susceptible to resolution under the standards and practices representative of traditional tort litigation. See Jenkins v. Raymark Industries, 782 F.2d 468, 470 (5th Cir.1986) (“Courts, including those in our own circuit, have been ill-equipped to handle this ‘avalanche of litigation.’ ... Our numerous opinions in asbestos-related eases have repeatedly recognized the dilemma confronting our trial courts, and expressed concern about the mounting backlog of eases and inevitable, lengthy trial delays.”); see also Lester Brickman, The Asbestos Litigation Crisis: Is There a Need for an Administrative Alternative?, 13 Cardozo L.Rev. 1819, 1841 (1992) (arguing that “Appellate opinions arguably applying a ‘there is law and there is asbestos law 1 doctrine can be found.”). In 1991, the Judicial Conference Ad Hoe Committee on Asbestos Litigation (the “Ad Hoc Committee”), whose members were appointed by Chief Justice Rehnquist, issued a report noting that:

What has been a frustrating problem is becoming a disaster of major proportions to both the victims and the producers of asbestos products, which the courts are ill-equipped to meet effectively.

The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.

Report of The Judicial Conferenoe Ad HOC Committee on Asbestos Litigation 2-3 (Mar.1991) [hereinafter Ad Hoc Committee Report]. The history of this case, up to and including our resolution of this appeal (which is dictated by binding authority) is a perfect illustration of the incompatibility of asbestos litigation and traditional tort litigation procedures.

This case also illustrates the need for a legislative response to the asbestos litigation crisis. As the majority opinion in this case notes, there is a dire need for legislative intervention in the arena of the asbestos litigation crisis. In its report, the Ad Hoc Committee argued that effective reform of the asbestos litigation crisis requires federal legislation creating a national asbestos dispute-resolution scheme. Ad Hoc Committee RepoRT 3, 27-35. The Judicial Conference of the Untied States adopted the Ad Hoc Committee’s recommendations, and urged Congress to “consider a national legislative scheme to come to grips with the impending disaster relating to resolution of asbestos personnel injury disputes, with the objectives of achieving timely, appropriate compensation of present and future asbestos victims and of maximizing the prospects for the economic survival and viability of defendants.” Report of the Progeedings of the Judicial CONFERENCE OF THE UNITED STATES 33 (Mar. 12, 1991). More recently, the Supreme Court discussed the Ad Hoc Committee’s report and the Judicial Conference’s recommendations to Congress, noting that “[t]o this date [June 25, 1997], no congressional response has emerged.” Amchem Products, Inc. v. Windsor, - U.S.-,-, 117 S.Ct. 2231, 2237-38 , 138 L.Ed.2d 689 (1997).

As the majority opinion convincingly establishes, the trial plan which the district court implemented below was legally deficient. As to the 160 phase III “sample” plaintiffs, who tried their cases to a jury regarding damages, the trial plan was inconsistent with the requirement of Texas law that determinations of causation be made as to “individuals, not groups.” See Fibreboard, 893 F.2d at 711 . The stipulation that replaced phase II established only that “some” individuals *337 working in each of the listed crafts during each of the relevant time periods at each of the 22 work sites were “exposed to asbestos [with] sufficient length and intensity to cause pulmonary asbestosis of varying degrees,” and that a Pittsburgh Corning asbestos product was present at those sites during two of the relevant time periods. As such, the stipulation was not sufficiently individualized, as it would have been if Pittsburgh Corning had stipulated that “all” of the plaintiffs were so exposed.

As to the “extrapolation” plaintiffs, the same rationale applies with respect to the issue of causation. Additionally, however, the extrapolation cases were deficient with regard to the determination of actual damages. In contrast to the “sample” phase III cases, no jury ever considered the “extrapolation” cases, and neither the court nor a jury made any individualized determinations of actual damages, as required by Texas law. See Fibreboard, 893 F.2d at 711 . It is for these reasons that we are reversing the judgments in the phase III “sample” cases and the “extrapolation” cases.

It appears, however, that Judge Parker’s phase II plan would have been sufficient if he had implemented the plan rather than disposing of it with the phase II stipulation. Under the plan, phase II would have addressed exposure on a craft and work site basis during the relevant time periods. A jury would have made exposure findings regarding specific work sites, crafts, and time periods. The jury would have heard evidence regarding the presence of the defendants’ asbestos products and asbestos dust at each work site. The jury would also have heard evidence about the nature of the different crafts at each work site and the relationship of those crafts to asbestos. Additionally, the jury would have heard evidence regarding working conditions at each work site and the relationship of those conditions to the defendants’ products.

The presentation of such evidence would clearly be sufficient for a reasonable jury to conclude that the presence of the defendants’ products caused injuries to individuals working in certain crafts at certain work sites during certain time periods, and how long of a time period would be sufficient to support such causation. The jury would have also heard evidence regarding the presence of the defendants’ products at the relevant work sites during the relevant time periods. Based on that evidence, the jury would have apportioned responsibility among the settling and non-settling defendants. The court would then make a determination of which plaintiffs worked for sufficient periods of time at each work site and which plaintiffs were members of each craft at those work sites.

The evidence, if presented as the plan anticipated, would satisfy the plaintiffs’ burden of proof, and would support a reasonable jury’s determination of causation specific to craft, work site, and relevant time period. Such evidence would also support a determination of the length of time on the job required to support causation. As such, the court’s task of simply plugging each plaintiff into a craft, work site, and time period would be a sufficiently individualized determination of causation for the district court to grant judgment as to the causation issue. 1

The question of damages, however, is another story. The inescapable reality is that Texas law requires that determinations of damages be made as to individuals, not as to groups, and this Court is powerless to alter that reality. As stated, the Ad Hoc Committee’s report concluded that the only real solution to the problems posed by the asbestos litigation crisis lies with Congress, but the *338 Ad Hoc Committee continued that “[a]t the same time, or failing congressional' action, the federal judiciary must itself act now to achieve the best performance possible from the system under current law.” Ad Hoc Committee RepoRT 4. Judge Parker made a valiant and admirable effort to take such action. Unfortunately, however, this Court is without the power to sanction or condone his approach.

Although resolution of these cases, under the current state of law, would require an inordinate number of damages trials, the parties involved should not lightly east aside the figures that Judge Parker arrived at in phase III as representative of actual damages in each category of disease. In arriving at these figures, Judge Parker tried 160 individual “sample” cases from each of the five disease categories represented by the pool of plaintiffs. The two juries that tried those 160 cases determined only whether each particular “sample” plaintiff suffered from an asbestos-related disease or injury and, if so, the amount of damages incurred. Following the trials, Judge Parker held a one day hearing after which he determined that the “sample” cases within each disease category were reliably representative of the more than 2,000 remaining “extrapolation” cases. Judge Parker then assigned each “extrapolation” case to a disease category and awarded actual damages equal to the average of the awards in the “sample” cases involving the same disease.

In sum, the judiciary’s utter inability to adequately address the seemingly insurmountable problems posed by asbestos litigation further underscores the need for legislative action. Nevertheless, although the procedure outlined above does not satisfy the demands of Texas law requiring individual determinations of damages, the parties should take notice of these figures as representative of an appropriate settlement range within each disease category. Such notice is particularly advisable for Pittsburgh Corning, against whom the phase I jury awarded a three to one punitive damages multiplier (i.e., $3.00 of punitive damages for every $1.00 of actual damages).

I tend to agree with Judge Thomas F. Hogan’s Separate Dissenting Statement to the Ad Hoe Committee’s report. 2 Judge Thomas acknowledged the “national crisis involving asbestos litigation,” but expressed concern with the Ad PIoc Committee’s recommendation that, if Congress chose not to accept the Committee’s recommendation of a national legislative scheme to deal with asbestos claims, Congress should consider legislation to expressly authorize the consolidation and collective trial of asbestos cases in order to expedite disposition of cases in federal courts with heavy asbestos personal injury caseloads. Ad Hoc Committee Report 41-43 (Separate Dissenting Statement of Judge Thomas F. Hogan). Judge Hogan stated:

My concern is the underlying premise of the report regarding the use of class action “collective” trials (trials by aggregation of claims) of asbestos cases. It is a novel and radical procedure that has never been accepted by an appellate court. It has been challenged as being constitutionally suspect in denying defendants their due process and jury trial rights as to individualized claimants, as well as conflicting with the court’s obligations to apply state law....

This recommendation, aside from the constitutional question, as a practical matter may well prove impossible to execute. See generally, the reference to the Cimino trial (passim) [referring, ironically, to the present case]. Trial by aggregation of claims and then the extrapolation of the damages by the court has been recognized by the Committee itself as being “the most radical solution.... ” See Report at 21. As mentioned, it has never been approved by any appellate court.

Id. at 41.

Our decision in this ease shows that Judge Hogan’s prophecy rang true. Judge Hogan *339 did agree that “a national solution is the only-answer.” Id. at 42. He continued, however, that “[s]ince the aggregation or collective trial method is highly questionable, a logical and viable solution would be the passage by Congress of an administrative claims procedure similar to the Black Lung legislation.” Id. Judge Hogan concluded:

There already exists a model to follow in the Black Lung program. If there is to be any Conference action, it is hoped the Conference would suggest that Congress consider such an approach.

Id. at 43.

I agree with Judge Hogan’s comments. Obviously, the type of consolidation attempted in this ease is unworkable in practice. Fibreboa/rd and the majority opinion in this case make that abundantly clear. As I have discussed, it is also apparent that the federal judiciary has not been able to formulate an appropriate response to the asbestos litigation crisis. In fact, this case suggests that we may be without the power to do so.

As such, there must be some alternative solution. The power to devise such a solution lies solely in the halls of Congress. Although I do not express any opinion on the strengths and weaknesses of the Federal Black Lung Program as implemented, the underlying concept of setting up an administrative claims procedure to handle a massive amount of claims for disabling employment-related impairments makes sense in the context of dealing with claims for asbestos-related injuries. Congress promulgated the Black Lung Program to rectify the historical lack of adequate state compensatory schemes for miners suffering from pneumoconiosis. 30 U.S.C. § 901 (1998). Similarly, asbestos-related injuries have presented .the courts with an unmanageable situation, which has resulted in an inadequate method of compensation for such injuries, both from the plaintiffs’ and defendants’ point of view. As such, I join Judge Hogan in urging Congress to formulate an administrative claim procedure for dealing with claims for asbestos-related injuries modeled on the Black Lung legislation.

In conclusion, I agree with the rationale and the result which the majority opinion has reached. Our hands are tied by the United States Constitution. We must respect Texas law and the Seventh Amendment. As the Ad Hoc Committee noted:

The picture is not a pretty one. Decisions concerning thousands of deaths, millions of injuries, and billions of dollars are entangled in a litigation system whose strengths have increasingly been overshadowed by its weaknesses.

Ad HoC Committee Report 2 (quoting statements of the Institute for Civil Justice of the Rand Corporation). This statement still holds true; however, the picture is much worse today. I implore Congress to heed the plight of the judiciary and the thousands of individuals and corporations involved. Congress alone has the power to devise a system to even attempt to alleviate these most pressing of concerns. Congress utilized this power in response to the plight of the coal miners. Simply stated, it is Congress’ duty and responsibility to do the same in response to the asbestos litigation crisis.

. The members of the Ad Hoc Committee were Judge Thomas M. Reavley (Chairman), Judge David D. Dowd, Jr., Judge Thomas F. Hogan (who filed a Separate Dissenting Statement), Judge John F. Nangle, Judge Robert M. Parker (the same Judge Parker who tried the cases before us on this appeal, except that he is now a Fifth Circuit Judge) and Judge Sam C. Pointer, Jr.