# Petition for Writ of Certiorari — Celotex Corp. v. Johnson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2716%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 920 ## Text _ 9%:339 | FIED Au «297 1999 F. SPAMOL, JR. CLERK IN THE Supreme Court of the United States OCTOBER TERM, 1990 > THE CELOTEX CORPORATION, Petitioner, —_—V.— TOHN E. JOHNSON, ef ux., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ANDREW T. BERRY Counsel of Record KEVIN J. CONNELL McCCARTER & ENGLISH Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102 (201) 622-4444 Attorneys for Petitioner QUESTIONS PRESENTED 1. Whether in a product liability action the Second Circuit misapprehended and misapplied the controlling New York law by upholding an award of punitive damages predicated upon merely negligent, rather «han reckless or intentional, conduct by the defendants. 2. Whether in a ‘‘failure to warn’’ product liability action the Second Circuit misapprehended and misapplied the con- trolling New York law by evaluating a defendant’s knowledge of risks posed by its product on the basis of ‘‘state of the art’’ evidence developed after the defendant’s manufacture of, and plaintiff’s last exposure to, that product. 3. Whether the Second Circuit erred in affirming the dis- trict court’s consolidation for trial of two markedly dissimilar ‘failure to warn’’ product liability actions involving, inter alia, entirely different periods of exposure to the product as well as significantly different ‘‘state of the art’’ proofs. ii PARTIES TO THE PROCEEDING AND RULE 29.1 STATEMENT The parties to the proceedings below included petitioner, The Celotex Corporation (defendant-appellant below), and respondents John E. Johnson and Anne Marie Johnson, his wife (plaintiffs-appellees below). Owens-Illinois, Inc. was a defendant-appellant in the pro- ceedings below, but does not intend to participate as a peti- tioner or respondent with respect to the filing of this petition. (Counsel for petitioner represented Owens-Illinois, Inc. in the court of appeals with respect to the filing of a petition for rehearing and subsequent proceedings). Raymark Industries, Inc. was a defendant in the district court proceedings, but was not a party to the appeal to the Second Circuit since the filing of an involuntary bankruptcy petition stayed all proceedings as to that party. (See State- ment of the Case at page 6 infra.) Pursuant to Rule 29.1, The Celotex Corporation states that its parent company is Jim Walter Corporation. Petitioner has no affiliates or other than wholly owned subsidiaries. iii TABLE OF CONTENTS PAGE 8 ee gy 3 gy) i PARTIES TO THE PROCEEDING AND RULE 29.1 a eRe chee 66 4ud sae dad é ade oes ii Se Oy to 4g)... rrr Vv EPSP ECO LEE CT ECCT TC ETTTTT Te l EE Oe ee a 2 IE CE IED, oo nsdn eos ecvescuccsessecses 2 SE GE BOOED GPRS gcc ccccccscccccncvcce 2 REASONS FOR GRANTING THE WRIT I. THE SECOND CIRCUIT MISAPPRE- HENDED AND MISAPPLIED THE CON- TROLLING NEW YORK LAW BY UPHOLDING AN AWARD OF PUNITIVE DAMAGES PREDICATED UPON MERELY NEGLIGENT, RATHER THAN RECKLESS OR INTENTIONAL, CONDUCT........... 8 A. Proceedings in the Court of Appeals..... 8 B. The Court of Appeals’ Adjudication of the Punitive Damages Issue in the Case at Bar Calls for an Exercise of this Court’s Power Ct ccank ten kieuneeséedees 4 15 iv PAGE II. THE SECOND CIRCUIT MISAPPRE- HENDED AND MISAPPLIED THE CON- TROLLING NEW YORK LAW BY EVALUATING DEFENDANT’S KNOWL- EDGE OF THE RISKS POSED BY ITS PRODUCTS ON THE BASIS OF “STATE OF THE ART’’ EVIDENCE DEVELOPED AFTER DEFENDANT’S MANUFACTURE OF, AND PLAINTIFF’S LAST EXPOSURE pio Mee Bg kk ty 2 ee 17 Ill. THE SECOND CIRCUIT ERRED IN AFFIRMING THE DISTRICT COURT’S CONSOLIDATION FOR TRIAL OF TWO MARKEDLY DISSIMILAR FAILURE TO WARN PRODUCT LIABILITY ACTIONS INVOLVING, INTER ALIA, ENTIRELY DIFFERENT PERIODS OF EXPOSURE TO THE PRODUCT AND SIGNIFICANTLY DIFFERENT STATE OF THE ART PROOFS 19 RN Te Fer eR Pe rr rie 25 TABLE OF AUTHORITIES Cases: PAGE Bolm v. Triumph Corp., 71 A.D.2d 429, 422 N.Y.S.2d i oe” A, eer re 4, 17, 2 Browning-Ferris Industries v. Kelco Disposal, Inc., 109 SB. CR. Fe Ci 6.08 0006s05seoksa sete 16 Dupont v. Southern Pacific Co., 366 F.2d 193 (Sth Cir. 1966), cert. denied, 386 U.S. 958 (1967)........... 20 Higgins v. The Celotex Corp., No. CV-87-0537 CRIs U Pd oncccndveandeccen se ane 3, 5, 17, passim In re Joint Eastern and Southern Districts Asbestos Litigation, 124 F.R.D. 538 (E.D.N.Y. 1989) ....... 2 Johnson v. The Celotex Corp., Nos. 89-7484, 89-7542, slip op. (2d Cir. March 20, 1990) (Carman, U.S.C.1.T., sitting by designation, [original] opinion OF GO GRUND « occneaccdsdésness cece 1, 6, 7, 9, passim Johnson v. The Celotex Corp., Nos. 89-7484, 89-7542, slip op. (2d Cir. March 20, 1990) (Mahoney, C.J., [original opinion] concurring in part and dissenting WR PUNE oc csnt nana tan 000s aokaeeeee 1-2, 6, 7, 8, passim Johnson v. The Celotex Corp., 899 F.2d 1281 (2d Cir. 1990) [‘‘corrected’’ majority opinion and ‘‘revised’’ © concurrence and dissent]................. 2, 3, 4, passim Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Civ. BED 6c iwesesecees basen 10, 11, i2, 13, 16 Constitutional provision: 5.5. Carat. QUO. Jeet © 8 602senncsndessaeenres 6, 16 vi PAGE Statutes: Be USA. | Uae CRs ockewcecrcdeccccs ere ry tre 2 SO USK. § ESE) CH cow indadencsccssvsveesecs 2 N.Y. Penal Law § 15.05(3) (McKinney 1987)......... 11, 12 Rules: FOG. RB. Civ. PO. 4b vvavccisctusctcnscavenme 19 Miscellaneous Authorities: Bordens & Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on Jury Decisions, Judicature (June-July, 1989)........cccccccccccces 23 D. Herr, R. Haydock & J. Stempel, Motion Practice Ol rr A a 20 W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts (Sth ed. 1984).... 9, 10 Newman, Jn Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brooklyn L. Rev. 365 (1984) 16 9 C. Wright & A. Miller, Federal Practice and Proce- dure (1971 & Supp. 1990)...... phnebdeeeuens euean 20 IN THE Supreme Court of the United States OCTOBER TERM, 1990 No. > THE CELOTEX CORPORATION, Petitioner, —V.— JOHN E. JOHNSON, ef ux., Respondents. > PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Petitioner, The Celotex Corporation [hereinafter ‘‘Celo- tex’’], respectfully prays that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Second Circuit entered in this proceeding on March 20, 1990. OPINIONS BELOW The original majority opinion of the United States Court of Appeals for the Second Circuit,’ as well as the separate 1 The opinion of the court was written by the Honorable Gregory W. Carman, Judge of the United States Court of International Trade, sit- ting by designation. The Honorable Roger J. Miner, Circuit Judge, joined in that opinion. 2 opinion of the Honorable J. Daniel Mahoney, C.J., concur- ring in part and dissenting in part, are unpublished and appear in slip opinion form in the appendix hereto at pages la to 22a, and 22a to 26a, respectively.” The ‘‘corrected”’ majority opinion (Pet. App. 28a-49a) and Judge Mahoney’s *“*revised’’ concurrence and dissent (Pet. App. 49a-52a) issued shortly before denial of Celotex’s petition for rehearing before the panel and en banc are reported at 899 F.2d 1281. The ‘‘memorandum and order’’ of the Ur‘ted States Dis- trict Court for the Eastern and Southern Lustricts of New York addressing defendants’ post trial motions is published under the caption Jn re Joint Eastern and Southern Districts Asbestos Litigation, 124 F.R.D. 538 (E.D.N.Y. 1989) and is reprinted in the appendix hereto at Pet. App. 53a-66a. JURISDICTION The judgment of the court of appeals was entered on March 20, 1990. On April 3, 1990 Celotex filed a timely peti- tion for rehearing before the panel with a suggestion of rehearing en banc which was denied by order dated May 24, 1990. Pet. App. 67a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1) (1982). STATUTE INVOLVED Federal Rule of Civil Procedure 42 is set forth at Pet. App. 70a. STATEMENT OF THE CASE Plaintiffs John Johnson and Ann Marie Johnson, his wife, filed a diversity’ action in district court alleging personal 2 Hereinafter citations to the appendix will be stated as ‘‘Pet. App. ag 3 = Jurisdiction in district court was predicated upon diversity of citizen- ship. 28 U.S.C. § 1332 (1982). injury and loss of consortium due to Mr. Johnson’s occupa- tional exposure from 1942-45 to asbestos-containing products allegedly supplied by defendants and a number of other cor- porations. Mr. Johnson’s action, like those of many other claimants in New York’s federal and state courts, was filed pursuant to a New York state one-year revival statute for asbestos and various toxic tort actions. See corrected major- ity opinion at Pet. App. 30a-3la. To manage the substantial asbestos docket generated by that revival statute, the United States District Courts for the Eastern and Southern Districts of New York assigned all pretrial matters pertaining to such cases to the Honorable Charles P. Sifton, U.S.D.J.‘ On November 4, 1988—three days before trial of the John- son case was to begin—Judge Sifton proposed that it be con- solidated with another case involving allegations of exposure to asbestos products, Higgins v. Raymark Industries, Inc., No. CV-87-0537 (S.D.N.Y.). Defendants strenuously objected to the consolidation stating that great prejudice would result from combining the two markedly different cases. Plaintiff Johnson, ‘‘essentially a well man’”’ diagnosed in 1985 with a non-impairing lung condition, never personally used asbestos-containing products but claimed ‘‘bystander exposure’’ to such products used by other workers during his three-year employment as an electrician’s helper at the Brooklyn Navy Yard from 1942-1945.° Plaintiff Higgins, on 4 See corrected majority opinion at Pet. App. 30a-3la. Although Judge Sifton formerly had responsibility for pretrial matters arising from the entire asbestos docket, he also served as trial judge in certain cases, such as the one at bar. The Honorable Jack B. Weinstein, U.S.D.J., now manages the asbestos docket of the Eastern and South- ern districts of New York. 5 That description was provided by plaintiff Johnson’s own medical expert, Dr. Steven Markowitz. Joint Appendix in Johnson v. The Celotex Corp., Nos. 89-7484 and 89-7542 (2d Cir. 1990) at page 650. [Hereinafter citations to the Joint Appendix before the Second Circuit will be stated as ‘‘Jt. App. i 6 See corrected majority opinion at Pet. App. 3la; 32a-33a; 37a. See also Jt. App. 10; 11; 13; 15; 19; 37; 39; 737. 4 the other hand, died considerably before trial from a more serious asbestos-related lung condition allegedly attributable to his twenty years of bystander exposure while employed as a ‘‘chipper and caulker’’ at the yard from 1946-66. See cor- rected majority opinion at Pet. App. 3la; 32a-33a; 37a. Johnson and Higgins did not know each other personally, and never worked at the huge shipbuilding facility at the same time.’ Since plaintiffs’ actions sought compensatory and punitive damages for defendants’ alleged failure to warn® of the health risks posed by their asbestos-containing products, defendants were certain that the substantially dissimilar exposure periods would prejudice defendants’ interests since the jury would have to ignore plaintiff Higgins’ ‘‘state of the art’’ evidence’ reflecting twenty additional years of scientific advances in evaluating Johnson’s claim.’® (See Points IJ and III of Rea- sons for Granting the Writ infra for a discussion of state of the art and consolidation issues). Defendants were also con- vinced that defense of the Johnson case would be prejudiced by evidence of Higgins’ considerably more serious illness and subsequent death. Jt. App. 1743-1758. Despite defendants’ objections, on November 7 Judge Sifton ordered a consoli- 7 See corrected majority opinion at Pet App. 31a; 37a. See also Jt. App. 13; 64; 99-101. 8 In the case at bar (and most other asbestos personal injury actions sounding in negligence and strict products liability), plaintiffs do not claim that injury resulted from defendants’ asbestos-containing prod- ucts’ failure to insulate as expected; rather, plaintiffs maintain that those products were defective due to inadequate warnings regarding health risks allegedly posed by those products. 9 Under the controlling New York law, ‘‘state of the art’’ in products liability cases has been defined as ‘‘the safety, technical, mechanical and scientific knowledge in existence and reasonably feasible for use at the time of manufacture.’’ Bolm v. Triumph Corp., 71 A.D.2d 429, 438, n.2, 422 N.Y.S.2d 969 (N.Y. App. Div. 1979) (quoting Uniform Products Liability Law § 106[a]). 10 See, e.g., Jt. App. 1743-1758. dated trial of the Higgins and Johnson cases.'' Judge Sifton also rejected defendants’ request that the court certify that order for interlocutory appeal to the Second Circuit. Jt. App. 1763-1764. Although defendants made a number of applica- tions to reduce the prejudicial effect of the consolidation, all were rejected.” Sir ce eight defendants settled and one filed a bankruptcy petition prior to trial, the Johnson and Higgins cases pro- ceeded to trial against three defendants: Owens-Illinois, Celo- tex, and Raymark Industries, Inc. [hereinafter ‘‘Raymark’’]. The jury rendered verdicts in favor of both plaintiffs and awarded Mr. Higgins $1 million in compensatory damages and $3 million in punitive damages which were apportioned equally among the three defendants. The jury awarded Mr. Johnson $350,000.00 in compensatory damages’? and $2.8 million in punitive damages which were imposed as follows: Celotex $1 million dollars, Owens-Illinois $800,000.00 and Raymark $1 million. Mrs. Johnson recovered a $30,000 com- pensatory award for loss of consortium. Due to post verdict procedural complications apparently defeating diversity juris- diction as to defendant Celotex in the Higgins case,'* judg- 11 Jt. App. 1767-1770. Due to deiay in obtaining a jury panel from the Southern District of New York, counsel’s opening statements did not begin until November 16, 1988. 12 ‘‘The [district court] declined to trifurcate or bifurcate the trial to separate issues of causation and compensatory damages from issues of liability and punitive damages. Appellants’ motions to have separate juries consider claims of liability and punitive damages in Johnson apart from claims in Higgins, were denied.’’ Pet. App. 3la. Defen- dants also unsuccessfully moved to preclude introduction of any post- 1945 state of the art evidence. See n.55 infra for a discussion of that application. 13 Pursuant to the controlling New York law, the jury apportioned lia- bility between the settling and non-settling defendants -resulting in the following percentage allocations: Celotex 12.5%, Owens Illinois 5.0%, Raymark 12.5%. The remaining 70% of liability was equally allocated among seven settling defendants. See corrected majority opinion at Pet. App. 32a. 14 See majority opinion at Pet. App. 32a. 6 ment was entered only in favor of plaintiff Johnson. Shortly after entry of judgment in Johnson, an involuntary bank- ruptcy petition stayed all proceedings as to defendant Ray- mark. Following unsuccessful post trial motions, the remaining defendants, Celotex and Owens-Illinois [hereinafter collectively ‘‘the defendants’’], filed notices of appeal. The Second Circuit, speaking through the Honorable Gre- gory W. Carman, U.S.C.1.T.,’* rejected all defendants’ con- tentions considered,’® and affirmed the judgment of district court in its entirety.’ The Honorable J. Daniel Mahoney, C.J., filed a separate opinion which dissented only from the majority’s ruling upholding the awards of punitive damages. Following review of the Second Circuit’s majority and sep- arate opinions, defendants sought rehearing before the panel and en banc by timely petition filed April 3, 1990. Pet. App. 78a-94a. 1S Judge, United States Court of International Trade, sitting by desig- nation. 16 As indicated in the court of appeals’ opinions below, defendants raised a number of constitutional challenges to the awards of punitive damages which the court did not reach. As in the proceedings below, petitioner respectfully maintains that the procedural and substantive due process arguments were adequately preserved, and that defendants presented sufficient proofs to demonstrate an unjust result occasioned by multiple imposition of punitive awards with respect to that latter challenge. Moreover, petitioner wishes to preserve its right to argue those issues in the event this Court grants certiorari and deems them adequaiely preserved. 17 Johnson v. The Celotex Corp., Nos. 89-7484, 89-7542, slip op. (2d Cir. 1990 March 20, 1990) (Carman, U.S.C.I.T., sitting by designa- tion, Opinion of the court). Pet. App. la-22a. [Hereinafter cited as “‘original majority opinion’’). 18 Judge Mahoney dissented only from ‘‘the majority’s conclusion that punitive damages are adequately supported by the evidentiary record,”’ and stated that he ‘‘would reverse the award of punitive damages as a matter of law.’’ Johnson v. The Celotex Corp., Nos. 89-7484; 89-7542, slip op. (2d Cir. March 20, 1990) (Mahoney, Circuit Judge, concurring in part and dissenting in part). Pet. App. 22a-26a. [Hereinafter cited as **Judge Mahoney’s original opinion’’]. In their petition for rehearing defendants asserted, inter alia, that by its own description the majority misapprehended and misapplied the controlling New York law regarding the type of evidence sufficient to sustain an award of punitive damages. Pet. App. 85a-88a. By letter dated April 20, 1990 (Pet. App. 27a) the Second Circuit supplied parties to the appeal with a ‘‘corrected’’ majority opinion (Pet. App. 28a-49a) and a ‘‘revised’’ ver- sion of Judge Mahoney’s concurrence and dissent (Pet. App. 49a-52a).'? Although the letter did not make any reference to defendants’ petition for rehearing, the only ‘‘correction’’ to the majority opinion consisted of excision of crucial language which Jefendants maintained established the majority’s improper use of a negligence, rather than a recklessness, stan- dard in assessing the sufficiency of evidence to support the awards of punitive damages.” The correction did not change the facts upon which the Second Circuit based its decision, the essential nature of its legal analysis, nor the result reached. Petitioner respectfully maintains that the Second Circuit’s alteration of the majority opinion attempts a cos- metic correction of a seriously erroneous decision. Several weeks after issuance of the corrected majority opin- ion, the Second Circuit denied defendants’ petition for rehearing by order dated May 24, 1990. That order does not refer to issuance of the corrected opinion, nor does it express any reasons for the denial. Pet. App. 67a. After denial of the petition for rehearing, Celotex filed a motion with the Second Circuit requesting either a stay or 19 The corrected majority opinion and Judge Mahoney’s revised opin- ion are reported: Johnson v. The Celotex Corp., 899 F.2d 1281 (2d Cir 1990). Where the wording of the original majority and separate opin- ions are identical to that of the ‘‘corrected’’ and ‘‘revised’’ versions of those documents, petitioner will hereinafter cite to both. Where lan- guage appears in only the original version of either opinion, petitioner will cite that document, and, if relevant, refer the reader to pertinent passage of the corrected and revised opinions. 20 The correction is discussed infra under Point I of Reasons for Granting the Writ. 8 recall of that court’s mandate pending the filing of this peti- tion for certiorari, but the motion was denied and mandate issued on June 6, 1990. Pet. App. 68a. Shortly thereafter, Celotex paid the bulk of the judgment” and a partial satis- faction was filed early in July. Pet. App. 76a. On August 8, 1990, the district court entered an amended judgment pursu- ant to ongoing proceedings to specify the exact amounts of principle and interest owed by petitioner and other defen- dants. Pet App. 73a. Celotex then filed this petition for a writ of certiorari. REASONS FOR GRANTING THE WRIT I. THE SECOND CIRCUIT MISAPPREHENDED AND MIS- APPLIED THE CONTROLLING NEW YORK LAW BY UPHOLDING AN AWARD OF PUNITIVE DAMAGES PREDICATED UPON MERELY NEGLIGENT, RATHER THAN RECKLESS OR INTENTIONAL, CONDUCT A. Proceedings in the Court of Appeals Although defendants raised a number of arguments against the imposition of punitive damages in the proceedings below, the Second Circuit reviewed only the question of whether legally sufficient evidence was adduced at trial to permit imposition of punitive damages under the controlling- New York law.” In performing that assessment, the majority recounted in part the district court’s proper jury instructions that punitive damages require a finding that a defendant’s conduct was ‘‘wanton and reckless,’’* but then proceeded to apply an 21 Celotex has paid $1,215,603.41; only the amount of interest between verdict and judgment remains outstanding. 22 Original and corrected majority opinions at Pet. App. 13a-18a and 40a-45Sa, respectively; Judge Mahoney’s original and revised opinions at 22a-26a and 49a-52a, respectively. 23 Original and corrected majority opinions at Pet. App. 17a and 44a, respectively. The brief district court instruction quoted in the majority opinion used the phrase ‘‘wanton and reckless’’; the majority opinion itself uses the phrase ‘‘wanton or reckless.’’ Jd. 9 erroneous ordinary negligence standard to sustain the awards at bar: A review of the evidence shows that the award of puni- tive damages was supported by the evidence as a matter of law. Plaintiff produced evidence at trial through expert witnesses, medical reports and documents from which the jury could reasonably conclude that appellants acted in a@ wanton or reckless manner. For example, plaintiff’s expert witness testified that a link between asbestos and lung cancer was suspected as early as 1930 and that this link was considered to be probable shortly after 1940. Another expert witness stated in his deposi- tion that by 1942 there were enough cases of the associa- tion between lung cancer and asbestos to include this information in a medical textbook on occupational can- cer. A former employee of Owens-Illinois testified that workers at a New Jersey plant, including plant execu- tives, wore respirators in the areas of loose raw material including asbestos. The jury was free to conclude from this and other evidence presented that appellants knew or should have known of the dangers of asbestos and did not adequately protect or warn users of asbestos, thereby acting in a wanton or reckless manner. Original majority opinion at Pet. App. 17a (emphasis sup- plied). In their petition for rehearing before the panel and en banc, defendants specifically referred to the last sentence of the above passage in arguing that the majority had incor- rectly interpreted and applied New York law in upholding an award of punitive damages based upon negligent” rather than reckless conduct.” 24 ‘*Knew or should have known”’ is clearly a negligence standard. See generally W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law or Torts § 32 at p. 184 (Sth ed. 1984). 25 See ‘‘Petition for Rehearing and Suggestion of Rehearing En Banc for Defendants-Appellants Owens-Illinois, Inc. and the Celotex Cor- 10 In dissenting from the majority’s punitive damages ruling,” Judge Mahoney stated that the majority had departed from both the controlling New York law as well as Judge Friend- ly’s highly respected opinion in Roginsky v. Richardson- Merrell, Inc.,”’ the applicable Second Circuit precedent. [New York law provides that] [p]unitive damages .. . are not properly chargeable against a defendant who merely ‘should have known’ of the risk in question. It must be shown that the defendant was aware of the risk, and that he consciously disregarded it. See Roginsky, 378 F.2d at 843 (punitive damages proper where manu- facturer shown ‘to have become aware of the danger and to have done nothing, deliberately closing its eyes’). There has been no such showing here. Judge Mahoney’s original and revised opinion at Pet. App. 24a and 5la, respectively (emphasis supplied). In addressing the punitive damages issue, Judge Mahoney quoted Dean Prosser’s formulation of the stringent common law rule requiring ‘‘willful or wanton’’ conduct involving a conscious and deliberate disregard of other’s interests,”* and 26 27 28 poration’’ at Pet. App. 86a (‘‘Defendants respectfully maintain that the majority’s analysis is patently erroneous. Indeed the final line of that discussion contradicts itself since negligence is not synonymous with recklessness.’’). ‘“*T respectfully dissent, however, from the majority’s conclusion that punitive damages are adequately supported by the evidentiary record, and would reverse the award of punitive damages as a matter of law.’’ Judge Mahoney’s original and revised opinions at Pet. App. 22a and 42a, respectively. 378 F.2d 832 (2d Cir. 1967) (Friendly, J., opinion of the court). ‘*(PJunitive damages may be deemed appropriate where a defendant, while not intending to injure a plaintiff, exhibits ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’ ’? Judge Mahoney’s original and revised opinions at Pet. App. 23a and 50a, respectively (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 2, at 9 (Sth ed. 1984)). 11 compared it to the more daunting New York standard for imposition of punitive damages. ‘‘As we have said, however, in another diversity case where we undertook a thorough review of the applicable New York precedents, New York law contemplates that ‘the recklessness that will give rise to puni- tive damages must be close to criminality, see 14 N.Y. Jur., Damages § 181 p. 41, and... , like criminal conduct, it must be ‘‘clearly established’’ ’ ’’” Applying the correct punitive damages standard and ‘‘state of the art evidence’ to the facts at bar, Judge Mahoney concluded that there was insufficient evidence for submission of punitive damages to the jury and that the punitive awards should be reversed as a matter of law.” As stated above, several weeks after the filing of defen- dants’ petition for rehearing, the Second Circuit issued a ‘corrected’? majority opinion and a ‘‘revised’’ concurrence and dissent. The correction to the majority opinion consisted of the deletion of the phrase ‘for should have known’”’ from 29 Judge Mahoney’s original and revised opinions at Pet. App. 23a and 50a, respectively (quoting Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967)). Judge Mahoney further noted that Roginsky ‘‘went on to quote. . . the definition in N.Y. Penal Law § 15.05(3) (McKinney 1987), since unchanged, as setting forth New York’s view of recklessness. Section 15.05(3) provides in pertinent part: A person acts recklessly with respect to a result. . . when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur... . The risk must be of such nature and degree that disregard thereof constitutes a gross devia- tion from the standard of conduct that a reasonable person would observe in the situation. I do not regard the evidence in this case as adequate for submission of punitive damages to the jury under these standards.’’ Judge Maho- ney’s original and revised opinions at Pet. App. 23a-24a and 50a-5la, respectively. 30 See Point II of Reasons for Granting the Writ infra for a discussion of state of the art issues. 31 Judge Mahoney’s original and revised opinions at Pet. App. 22a-26a and 49a-52a, respectively. 12 the sentence in which the majority enunciated and applied the legal standard to the evidence of record: ‘‘The jury was free to conclude from this and other evidence presented that appellants knew or should have known of the dangers of asbestos and did not adequately protect or warn users of asbestos, thereby acting in a wanton or reckless manner.”’ Compare original and corrected majority opinions at Pet. App. 17a-18a and 44a, respectively. Aside from deletion of the phrase ‘‘or should have known,”’ the original and cor- rected majority opinions are identical. Along with the corrected majority opinion the Second Cir- cuit issued a ‘“‘revised’’ concurrence and dissent which reflected changes in Judge Mahoney’s quotation of and refer- ence to the majority opinion.” Several weeks after issuance of the corrected majority opin- ion, the Second Circuit issued an order denying defendants’ petition requesting rehearing before the panel or en banc. Petitioner respectfully maintains that the correction of the “majority opinion effects only a cosmetic change which does not repair the majority’s misapprehension or misapplication of the controlling state law, nor the seriously erroneous result reached under that faulty legal analysis. Petitioner does not question—and would not dispute in this Court—the Second Circuit’s ability ve/ non to issue an opin- ion correcting technical mistakes, nor that court’s ability to 32. = The italicized language in the following quote from Judge Maho- ney’s Original opinion was not included in his revised concurrence and dissent: ‘‘The majority reasons that the jury could conclude, on this record, ‘that appellants knew or should have known of the dangers of asbestos and did not adequately protect or warn users of asbestos, thereby acting in a wanton or reckless manner.’ There are two prob- lems with this rationale. First, as I have already noted, a ‘should have known’ formulation simply does not equate with recklessness under New York law; actual awareness is required. See Roginsky, 378 F.2d at 843; N.Y. Penal Law § 15.05(3). Second, the majority paints with much too broad a brush, as I see it, in its reference to the ‘dangers of asbestos.’ Compare Judge Mahoney’s original and revised opinions at Pet. App. 25a and 52a, respectively. 13 reconsider a case and issue an ‘‘amended’’ opinion changing matters of substance. Petitioner does, however, dispute the court of appeals’ ability to avoid its responsibility to follow the controlling law by excising language that provided the clearest—but hardly the only—evidence that the wrong legal standard was applied. One cannot reasonably explain deletion of the phrase ‘‘or should have known’’ from the sentence expressing the major- ity’s ruling as a mere technical correction to a decision which applied the correct law. The language remaining in the cor- rected opinion indicates that the majority did not consider what Celotex actually knew” regarding the dangers of asbes- tos at the time of Mr. Johnson’s employment, rather, the majority upheld the award of punitive damages based upon what others suspected or thought probable: A review of the evidence shows that the award of puni- tive damages was supported by the evidence as a matter of law. Plaintiff produced evidence at trial through expert witnesses, medical reports and documents from which the jury could reasonably conclude that appellants acted in a wanton or reckless manner. For example, plaintiff’s expert witness testified that a link between asbestos and lung cancer was suspected as early as 1930 and that this link was considered to be probable shortly after 1940. Another expert witness stated in his deposi- tion that by 1942 there were enough cases of the associa- tion between lung cancer and asbestos to include this information in a medical textbook on occupational can- cer. A former employee of Owens-Illinois testified that workers at a New Jersey plant, including plant execu- tives, wore respirators in the areas of loose raw material itcluding asbestos. The jury was free to conclude from 33 As Judge Mahoney points out in both his original and revised opin- ions: ‘‘[Under New York law] [pJunitive damages . . . are not prop- erly chargeable against a defendant who merely ‘should have known’ of the risk in question. It must be shown that defendant was aware of the risk, and that he consciously disregarded it. See Roginsky, 378 F.2d at 843.’’ Pet. App. 24a; Sla. 14 this and other evidence presented that appellants knew [or should have known] of the dangers of asbestos and did not adequately protect or warn users of asbestos, thereby acting in a wanton or reckless manner. Original majority opinion at Pet. App. 17a. [Text in brackets omitted from corrected majority opinion. See Pet. App. 44a]. It is also highly significant that none of the punitive dam- ages evidence discussed in the above passage properly per- tains to plaintiff Johnson’s punitive claim against Celotex. The majority did not consider what Celotex actually knew from 1942-45 about risks to ‘‘bystanders’’ like Johnson exposed to finished asbestos products. Rather, the majority, erroneously applying a negligence standard, focused on what Celotex ‘‘should have known’’ based upon what others knew, **suspected,’’ or ‘‘considered to be probable.’’ Moreover, even if one advanced the untenable argument that the major- ity meant to say that it inferred Celotex’s actual knowledge of those risks based upon what others knew,’’™ such actual knowledge could not support the award of punitive damages at bar since those risks do not relate to plaintiff Johnson. The punitive damages proofs mentioned in the majority opinion pertain to workers in ‘‘asbestos processing plants’’ who had ‘‘direct and sustained exposure to high concentra- tion levels of asbestos fibers,’’** not to ‘‘bystanders’’ like Johnson who was exposed to lower concentration levels since he: 1) did not personally use raw asbestos fiber (or even fin- ished asbestos products), 2) worked in a shipyard rather than an asbestos processing plant, and 3) derived his ‘‘bystander”’ exposure from ‘‘finished hardbound insulation products con- taining asbestos’’ used by other shipyard workers.** As Judge 34 ~—s It. is highly unlikely that a court which corrects its original opinion— apparently in response to a petition for rehearing—would fail to express itself accurately in its second opinion. 35 Judge Mahoney’s original and revised opinions at 24a-25a and Sla- 52a, respectively. 36 See Judge Mahoney’s original and revised opinions at Pet. App. 24a (the last two lines) to 25a, and 52a (the last two lines) to 53a, respec- tively. 15 Mahoney stated in his dissent, the record at bar contains ‘‘no evidence’’ to support plaintiff Johnson’s punitive award against Celotex. Pet. App. 25a; 52a (emphasis in original). B. The Court of Appeals’ Adjudication Of The Punitive Damages Issue In The Case At Bar Calls For An Exercise Of This Court’s Power Of Supervision While it is true that a case involving an erroneous result predicated upon a court of appeals’ misapprehension and misapplication of state law is not the most likely candidate for a grant of certiorari, petitioner Celotex respectfully main- tains that the punitive damages issue in the case at bar war- rants issuance of the writ, even if not plenary consideration.” First, the Second Circuit’s decision on the punitive dam- ages issue was seriously and undoubtedly erroneous. That alone warrants this Court’s corrective action short of plenary consideration. Furthermore, the Second Circuit’s manner of adjudication presents a compelling case for this Court’s exer- cise of its supervisory powers. Although accorded the oppor- tunity to correct its erroneous decision through rehearing or rehearing en banc, the Second Circuit refused to do so in a straightforward manner but instead attempted a cosmetic cor- rection which deflected Celotex’s challenge and preserved the majority’s flawed reasoning and unjust result. The practice employed in the case at bar evinced a cavalier attitude towards a federal court’s basic obligation to respect and fol- low controlling state law in diversity cases. Moreover, careful observance of state laws limiting the availability of punitive damages is of particular importance given the threat such 37. Given the unequivocal nature of the Second Circuit’s error with respect to the punitive damages and state of the art issues, Celotex respectfully suggests that reversal of the punitive award as a matter of law, or a ‘‘grant, vacate and remand’’ order may be appropriate in the case at bar. See ‘‘Conclusion’”’ io this petition infra. 16 damages pose to litigants’ due process rights. See, e.g., Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc..** The fact that the case at bar arises from a circuit which severely restricts rehearings en banc” also argues for grant of certiorari. A court of appeals which does not meet its obliga- tion to grant en banc review of a panel decision which is both obviously erroneous and inconsistent with the controlling cir- cuit precedent,” forces this Court to exercise its supervisory powers or allow an injustice to occur. 38 39 40 109 S. Ct. 2909, 2921 (1989) (Blackmun, J., opinion of the Court) (reserving for ‘‘another day’’ consideration of due process challenges to punitive damages). See Justice Brennan’s concurring opinion, id. at 2923-24 (regarding availability of due process challenge). See also Jus- tice O’Connor’s opinion concurring in part and dissenting in part. /d. at 2924 (‘‘[NJothing in the Court’s opinion forecloses a due process challenge to awards of punitive damages or the method by which they are imposed, and I adhere to my comments in Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71, 86-89 (1988) (opinion concurring in part) regarding the vagueness and procedural! due process problems presented by juries given unbridled discretion to impose punitive dam- ages.’’) In his law review article on the subject, Second Circuit Judge Jon O. Newman states: ‘“‘One of the distinctive characteristics of the United States Court of Appeals for the Second Circuit is the infrequency of rehearings in banc. In the three court years ending June 30, 1983, the Second Circuit reheard only 2 cases in banc,’’ the lowest number granted by a court of appeals during that period. Newman, /n Banc Practice in the Second Circuit: The Virtues of Restraint, 50 Brooklyn L. Rev. 365-66 (1984) [citations omitted]. ‘‘In the same period in bancs in all circuits averaged 18, reaching a high of 44 in the Fifth Circuit.” Id. at 36S. See discussion of Judge Friendly’s opinion in Roginsky vy. Richardson-Merrell, Inc., 378 F.2d 832 (2d Cir. 1967) at pages 10-13 of this petition. 17 Il. THE SECOND CIRCUIT MISAPPREHENDED AND MIS- APPLIED THE CONTROLLING NEW YORK LAW BY EVALUATING DEFENDANT’S KNOWLEDGE OF THE RISKS POSED BY ITS PRODUCTS ON THE BASIS OF “STATE OF THE ART’’ EVIDENCE DEVELOPED AFTER DEFENDANT’S MANUFACTURE OF, AND PLAINTIFF’S LAST EXPOSURE TO, THOSE PRODUCTS The Second Circuit’s majority opinion not only misappre- hended the New York punitive damages standard, it also mis- apprehended and misapplied applicable ‘‘state of the art’’ legal principles which preclude imposition of punitive dam- ages in the case at bar. Under the controlling New York law, the relevant ‘‘state of the art’’ in products liability cases has been defined as ‘‘the safety, technical, mechanical and scientific knowledge in existence and reasonably feasible for use at the time of manu- facture.’’*' Under this standard the jury in the case at bar should have evaluated plaintiff Johnson’s claim only with respect to evidence of knowledge of asbestos risks extant and reasonably available to asbestos-product manufacturers at or before 1945—the date of his last exposure to those products. Instead, however, due to the district court’s consolidation of the Johnson and Higgins cases and denial of defendants’ motions to ameliorate the prejudicial effect of that consolida- tion, the jury heard and applied plaintiff Higgins’ 1946-66 state of the art evidence to Johnson’s claim.” In upholding Mr. Johnson’s award of punitive damages the Second Circuit’s majority opinion made an error all too com- 41 Bolm vy. Triumph Corp., 422 71 A.D.2d 429, 438, n.2, 422 N.Y.S.2d 969, 975, n.2 (N.Y. App. Div. 1979) (quoting Uniform Products Lia- bility Law, § 106[a)}). 42 See Point III infra regarding the district court’s consolidation of the Johnson and Higgins cases and the inadequacy of the trial court's instructions to the jury to consider each plaintiff's claims individually. 18 mon in ‘‘failure to warn’’ toxic tort actions. The majority erroneously assumed that once an asbestos-product manufac- turer had knowledge that asbestos could cause a particular ailment (e.g., asbestosis) under a particular set of exposure circumstances (e.g., the use of raw asbestos fiber by factory workers manufacturing insulation products)*’ it also necessar- ily had knowledge of all other ‘‘dangers of asbestos.’’ See Judge Mahoney’s original and revised opinions at Pet. App. 25a and 52a, respectively. As Judge Mahoney points out, plaintiff Johnson’s punitive damages evidence regarding the corporate defendants’ know]- edge of the dangers of asbestos consisted of references to medical literature and corporate communications indicating that as of the mid 1940s there was information that workers in asbestos-processing plants who experienced ‘‘direct and sustained exposure to high concentration levels of asbestos fibers’? could be harmed thereby. Judge Mahoney’s original and revised opinions at Pet. App. 24a-25a and 5la-52a, respectively. The record, however, ‘‘contains no evidence that either medical researchers or asbestos manufacturers pos- sessed, in the mid 1940s [the time of plaintiff Johnson’s last exposure to asbestos] information establishing, or even pre- dicting, that ‘bystanders’ [like Johnson who did not person- ally use raw fiber or even finished asbestos products] might experience unsafe levels of exposure in shipyards where fin- ished hardbound insulation products containing asbestos were in use. The award of punitive damages is, therefore, in my view unsustainable.’’ Jd. at Pet. App. 25a and 52a, respec- tively. This is so because under New York law punitive dam- ages ‘‘are not properly chargeable against a defendant who merely ‘should have known’ of the risk in question. It must be shown that the defendant was aware of the risk, and that he consciously disregarded it.’’ Jd. at Pet. App. 24a and Sla, respectively. 43 Such manufacturing workers were generally exposed to much higher concentration levels of airborne asbestos fibers than, for example, insulators who worked with finished asbestos-containing products, or ‘*bystanders”’ like plaintiff Johnson who claimed exposure to asbestos- containing products used by other workers. 19 Since there was no evidence below that the asbestos- product manufacturers at bar had actual knowledge in the mid 1940s that plaintiff Johnson’s ‘‘bystander’’ exposure to finished asbestos-containing products could result in the ail- ment he developed, ‘‘asbestosis-related pleural disease,’’™ his award of punitive damages is improper under New York law and should be corrected by this Court.*° Ill. THE SECOND CIRCUIT ERRED IN AFFIRMING THE DISTRICT COURT’S CONSOLIDATION FOR TRIAL OF TWO MARKEDLY DISSIMILAR FAILURE TO WARN PRODUCT LIABILITY ACTIONS INVOLVING, INTER ALIA, ENTIRELY DIFFERENT PERIODS OF EXPO- SURE TO THE PRODUCT AND SIGNIFICANTLY DIFFERENT STATE OF THE ART PROOFS The Second Circuit’s affirmance of the district court’s con- solidation for trial of two” ‘‘failure to warn’’ products liabil- ity actions involving, inter alia, entirely different periods of product exposure and markedly different ‘‘state of the art’’ proofs deprived petitioner of a fair trial and constitutes an impermissible practice under Federal Rule of Civil Procedure 42 requiring an exercise of this Court’s supervisory powers. Rule 42(a) of the Federal Rules of Civil Procedure*’ per- mits the complete or partial consolidation of pretrial or trial 44 ‘Plaintiffs’ expert medical witness apparently was unwilling to char- acterize Mr. Johnson’s condition as the more serious disease ‘‘asbesto- sis,’’ but did not think it sufficiently mild to classify as ‘‘pleural disease,’’ so he chose a middle ground by using the term which appears in the text above. See Jt. App. 715. 45 See Point IB of Reasons for Granting the Writ supra. 46 _— Petitioner is aware that courts have on occasions consolidated signif- icantly greater numbers of asbestos actions for trial, and that some of those trials have resulted in defense verdicts. That alone, however, does not prove that consolidation of the markedly different Johnson and Higgins actions was proper, nor does it justify the obviously unfair judgment at bar. 47 Reprinted at Pet. App. 70a. 20 proceedings involving common questions of law or fact. In so providing the rule grants district courts broad discretion to manage their dockets and promote judicial economy.* In making consolidation rulings, a court should weigh the potential time and cost savings to the parties, witnesses and the court against the risks of prejudice, confusion, inconven- ience and expense that may result from consolidation.” Anal- ysis of factors governing consolidation decisions is more likely to indicate consolidation of pretrial rather than trial proceedings since the dangers of confusion, expense and prej- udice are more likely to occur with respect to the latter. Despite the latitude accorded trial judges with respect to consolidation, their discretion is not totally unfettered and is subject to appellate review under the abuse of discretion stan- dard.*' Where prejudice to the rights of either party results from an order of consolidation, such a ruling constitutes reversible error.” Petitioner respectfully maintains that the consolidation rul- ing in the case at bar deprived Celotex of a fair trial and resulted in a verdict which is demonstrably the result of prej- udice and confusion. As mentioned above, the district court, over defendants’ objections, consolidated the Johnson and Higgins actions for trial several days before their separate trials were to com- mence. Defendants objected to the consolidation because 48 OD. Herr, R. Haydock & J. Stempel, Motion Practice 291-95 (lst ed. 1985). [Hereinafter Herr, Motion Practice}. 49 Herr, Motion Practice 291-295; 9 C. Wright & A. Miller, Federal Practice and Procedure §§ 2382-2383 (1971 & Supp. 1990). SO = Herr, Motion Practice 292-95. This is true since trial consolidation should be ordered only where actions can be tried before the same jury with overlapping and largely congruent liability proofs. Jd. at 292-93; 295. 51 Herr, Motion Practice at 295. $2. Dupont v. Southern Pacific Co., 366 F.2d 193, 196 (Sth Cir. 1966), cert. denied, 386 U.S. 958 (1967). 21 % although the two actions were superficially similar in several respects, they were fundamentally different in ways which precluded a fair consolidated trial. Although Johnson and Higgins both worked at the Brook- lyn Navy Yard, a huge facility,’ they did not do so during the same period. That difference, as well as the vastly differ- ent duration of their respective employments proved an insur- mountable obstacle to a fair consolidated trial of two “failure to warn’’ product liability actions where ‘‘state of the art’’ evidence is crucial. Johnson worked at the yard as an electrician’s helper during the three year period from 1942 to 1945; Higgins worked as a ‘‘chipper and caulker’’ for the 20 year period from 1946 to 1966. Since Johnson was not exposed to asbestos-containing products after leaving the yard,™ the jury deciding his claim should not have heard or considered post-1945 ‘‘state of the art’’ evidence. Or, to put it in other terms, the jury should have heard and considered evidence of only those asbestos risks known to the scientific and industrial community prior to 1945. But, unfortunately, due to the consolidation and denial of defendants’ motion to preclude introduction of any post-1945 evidence,” the jury was permitted to hear evidence pertaining to the advances in medical, scientific and industrial knowledge achieved during $3 Mr. Johnson described the Brooklyn Navy Yard as having approxi- mately 100,000 employees, and covering an area about three miles long and one-half mile wide. See Jt. App. 10; 377-378. See also Jt. App. 383. See original and corrected majority opinions at Pet. App. 6a and 33a, respectively. $4 See original and corrected majority opinions at Pet. App. 6a and 33a, respectively. SS The majority opinion incorrecuy states that defendants moved ‘‘to preclude all evidence of knowledge post-1945 in relation to plaintiff Johnson .. . .’’ Original and corrected majority opinions at Pet. App. 4a and 3la, respectively. Defendants actually moved to com- pletely preclude introduction of such evidence. Joint Appendix at Jt, App. 1783; 1784, line 19. At trial and in their appeal to the Second Cir- cuit, defendants maintained that the introduction of plaintiff Higgins’ post-1945 state of the art evidence was prejudicial to defense of the Johnson claim. 22 the subsequent 20 year period when Mr. Higgins was employed. It was only during this latter period that the ‘‘state of the art’’ began to include information that ‘‘bystander”’ asbestos exposure like that experienced by plaintiff Johnson could cause his type of pulmonary injury. Petitioner maintains that the failure of the jury to consider Mr. Johnson’s and Mr. Higgins’ claims separately despite the trial court’s instructions’ is demonstrated by the fact that the jury found a similar duty to warn as to both plaintiffs,* and, more significantly, awarded the plaintiffs almost identical punitive damages: $3 million for Higgins and $2.8 million for 56 As Judge Mahoney noted in his dissent: ‘‘This record contains no evidence that either medical researchers or asbestos manufacturers pos- sessed, in the mid 1940s, information establishing, or even predicting, that ‘bystanders’ might experience unsafe levels of exposure in ship- yards where finished hardbound insulation products containing asbes- tos were in use.’’ Judge Mahoney’s original and revised opinions at Pet. App. 25a and 52a, respectively. 57 See original and corrected majority opinions at Pet. App. 10a and 37a, respectively (‘‘Instructions were given throughout the trial and in the charge to caution the jury to consider each plaintiff’s claims indi- vidually. Two separate verdict forms were provided to the jury, one for Johnson, the other form for Higgins’’). 58 In holding defendants liable to both plaintiffs, the jury necessarily found a duty to warn existed during both Mr. Johnson’s and Mr. Hig- gims’ periods of employment. Under the controlling New York law, a defendant’s duty to warn exists, if at all, only with respect to risks rea- sonably knowable at the time of defendant’s manufacture of the prod- uct. See, e.g., Bolm v. Triumph Corp., 71 A.D.2d 429, 438, n.2 and preceding text, 422 N.Y.S.2d 969 (N.Y. App. Div. 1979). Yet, as Judge Mahoney noted, there was no evidence in the mid 1940s that the state of the art for asbestos included information that ‘‘bystanders’’ in ship- yards were at risk. See Judge Mahoney’s original and revised opinions at Pet. App. 25a and 52a, respectively. While he would reverse the award of punitive damages as a matter of law, Judge Mahoney upheld the compensatory award on the theory that during the time of Johnson’s exposure, ‘‘appellants were aware that the properties of asbestos were such that it could, at some level of exposure, injure a human being.’’ Judge Mahoney’s original and revised opinions at Pet. App. 24a and Sla, respectively. Petitioner respectfully maintains that such generalized information is insufficient to support even an award of compensatory damages. 23 Johnson. Since Mr. Higgins’ punitive claim was predicated upon 20 additional years of defendants’ purported inaction in the face of a duty to warn, it is impossible to believe that the jury did not apply Higgins’ proofs to Johnson’s claim. While the consolidation was most obviously prejudicial with respect to the state of the art evidence, prejudice also appears in the fact that the jury compensating Johnson, ‘essentially a well man,’’” also heard—and was improperly swayed by-——evidence of Higgins’ slow death from serious lung disease in graphic detail through the testimony of his widow and son.” Even if the case at bar did not arise from the large and recently acquired asbestos docket of district courts in need of guidance with respect to consolidation issues, it would still warrant this Court’s grant of certiorari to correct the serious injustice visited upon petitioner Celotex. The fact that it does arise from such a docket, however, presents a stronger case for this Court’s exercise of its discretion. While recognizing that this Court cannot be asked to artic- ulate a comprehensive set of trial consolidation guidelines for all types of cases heard in the federal courts, petitioner respectfully suggests that guidance from this Court counseling consolidation of only those failure to warn product liability actions with largely congruent liability or state of the art evi- dence would help eliminate jury confusion and prejudice to 59 Mr. Johnson was so described by his own medical expert. Jt. App. 650. A recent empirical study supports the proposition that consolidating a severely injured piaintiff’s trial with that of a plaintiff less severely injured tends to result in overcompensation of the laicer, and under- compensation of the former. Bordens & Horowitz, Mass Tort Civil Litigation: The Impact of Procedural Changes on Jury Decisions, Judicature (June-July, 1989) at 23. 60 They related his difficulties in breathing; how he brought a portable oxygen unit to church with him (Jt. App. 9S), how he could not sleep normally and was compelled to sit upright through the night dependent upon a nearby oxygen unit (Jt. App. 71-72); how his lips and finger- nails turned purple, and his feet swelled (Jt. App. 98); and how he finally suffocated to death (Jt. App. 99-101). 24 defendants in thousands of cases. Indeed, the fact that the district court and the Second Circuit had to resort to and purported to utilize a rather general (and non-hierarchical) eight-factor trial consolidation test contained in an unre- ported Maryland district court opinion®’ strongly suggests the need for guidance from this Court. Even a ruling from this Court which serves to encourage the lower courts to develop more meaningful consolidation standards than those employed in the case at bar would be beneficial. Even if this Court does not find the instant case an appro- priate vehicle for enunciation of consolidation standards for asbestos or toxic tort dockets, an exercise of this Court’s supervisory powers is necessary to instruct lower courts— especially those dealing with crowded dockets—that Rule 42(a) does not provide license to consolidate markedly dissim- ilar actions. Indeed, district courts such as the Eastern and Southern Districts of New York with hundreds or thousands of pending asbestos cases to choose from have absolutely no need to prejudice defense of those cases by combining moderately—much less markedly—dissimilar actions in order to achieve judicial economy.” 61 Although the Second Circuit repeated and purported to utilize an eight-factor trial consolidation test set forth in an unreported Mary- land district court opinion, it upheld the consolidation of Johnson and Higgins despite the fact that the two actions differed as to three of the most crucial elements of that test: (3) period of exposure, (4) type of disease and (5) whether plaintiffs were living or deceased. Petitioner respectfully maintains that the district court below gave undue weight to the criterion least important from the standpoint of avoiding deci- sion On an improper basis: (6) both Johnson and Higgins were ready for trial at the same time. See Statement of the Case supra regarding consolidation of Johnson and Higgins several days before their sepa- rate trials were to begin. 62 Given the great number of pending Brooklyn Navy Yard asbestos personal injury actions, the district court, perhaps with the assistance of counsel, surely could have found another case with an exposure period similar, if not identical, to that of plaintiff Johnson. 25 CONCLUSION For all the foregoing reasons, the petition should be granted and the case given plenary review. In the event this Court decides plenary review is umnecessary, petitioner respectfully urges the Court to grant certiorari, vacate the judgment below and remand the case to the district court for a new tmal on the ground that the consolidated trial was improper. If the Court declines to grant a new trial, peti- tioner respectfully requests that the Court enter judgment in favor of Celotex as a matter of law with respect to plaintiff’s punitive damages claims, or remand the case to the Second Circuit for reconsideration of the punitive damages, state of the art and consolidation issues. Respectfully submitted, ANDREW T. BERRY Counsel of Record KEVIN J. CONNELL MCCARTER & ENGLISH Four Gateway Center Andrew T. Berry 100 Mulberry Street Of Counsel Newark, New Jersey 07102 Kevin J. Connell (201) 622-4444 On the Brief Attorneys for Petitioner August 22, 1990 APPENDIX — * Siig ate i A ee a 8 TABLE OF CONTENTS Opinion of the United States Court of Appeals for the Second Circuit, Dated March 20, 1990............ Letter Dated April 20, 1990 Amending Opinion of the United States Court of Appeals for the Second Cir- Cul, GRE TE i GU Sk db nce cctsdescésccces Corrected Opinion of the United States Court of Appeals for the Second Circuit, Dated March 20, PEP CT EET OCCT Oe Te Oe ee ee Memorandum and Order of the United States District Court (Joint Eastern and Southern Districts Asbestos Litigation), Dated February 3, 1989............... Order of the United States Court of Appeals for the Second Circuit on Rehearing, Dated May 24, 1990. Judgment of the United States Court of Appeals for the Second Circuit, Dated March 20, 1990......... Pee. ee Ge Ce PD a oda cccecncdcesesacses Judgment of the United States District Court for the Southern District of New York, Dated February 10, SEE ccéuncnes ¢hunessbbhe seunbbdabnaeeenaanenedl Amended Judgment of the United States District Court for the Southern District of New York, Dated PEE Fi Be vk scuthedeesccasecssbeogunésesexes PAGE la 27a 28a S3a 67a 68a 70a 7la PAGE Partial Satisfaction of Judgment, Dated July 6, 1990. 76a Petition For Rehearing And Suggestion Of Rehearing En Banc, Filed in the United States Court Of Appeals For The Second Circuit, Dated April 3, PE dik eb end beds bnnksicedeanenedsndesekinecs 78a la UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT > Nos. 341, 342—August Term, 1989 (Argued: November 2, 1989 Decided: March 20, 1990) Docket Nos. 89-7484, 89-7542 7 JOHN E. JOHNSON and h/w ANN MARIE JOHNSON, Plaintiffs-Appellees, —against— THE CELOTEX CORPORATION, OWENS-ILLINOIS, INC., Defendants-Appellants. Before: MINER and MAHONEY, Circuit Judges, and CARMAN, Judge.* — Defendant-appellant The Celotex Corporation appeals from a judgment entered after a jury verdict and from orders of the United States District Court for the South- S Honorable Gregory W. Carman, Judge, United States Court of International Trade, sitting by designation. 2a ern District of New York regarding Joint Eastern and Southern Districts Asbestos Litigation, (Sifton, J.), denying its motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial and for a mistrial. Defendant-appellant Owens-Illinois, Inc. appeals from the same judgment and from orders deny- ing its motion for judgment notwithstanding the verdict and its motion for a new trial or, in the alternative, for a remittitur. Affirmed. Judge Mahoney concurs in part and dis- sents in part in a separate opinion. > STEVEN J. PHILLIPS, New York, New York (LEVY PHILLIPS & KONIGSBERG, Diane Paolicelli, New York, New York, of counsel), for Plaintiffs-Appellees. ANDREW T. BERRY, Newark, New Jersey (MCCARTER & ENGLISH, Newark, New Jersey, of counsel), for Defendant- Appellant The Celotex Corporation. FRANK H. SANTORO, Hartford, Connecticut (DANAHER, TEDFORD, LAGNESE & NEAL, P.C., Joyce A. Lagnese, Paul J. Narducci, Wendy W. Wanchak, Hart- ford, Connecticut, of counsel), for Defendant-Appellant Owens-Illinois, Inc. 3a CARMAN, Judge: Defendant-appellant The Celotex Corporation (Celo- tex or appellant) appeals from a judgment entered in the Southern District of New York after a jury trial before Charles P. Sifton, J., regarding Joint Eastern and Southern Districts Asbestos Litigation, awarding com- pensatory and punitive damages and damages for loss of consortium in an asbestos products liability personal injury case. Celotex appeals from orders denying its motion for judgment notwithstanding the verdict, or in the alternative, a new trial and for a mistrial. Defendant-appellant, Owens-Illinois, Inc. (Owens- Illinois or appellant) appeals from the same judgment and orders denying its motion for judgment notwith- standing the verdict and its motion for a new trial or, in the alternative, for a remittitur. Appellants request us to reverse the judgment below or, in the alternative, vacate the judgment and remand for a new trial. In the alternative, appellants ask us to vacate the punitive damages award and remand for a new trial on the issue of punitive damages. BACKGROUND This appeal is one of many which arises from thou- sands of cases filed against manufacturers and producers of asbestos, resulting in unparalleled litigation in Ameri- can tort law. See Racich v. Celotex Corp., 887 F.2d 393, 394 (2d Cir. 1989); In re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir.), cert. denied, 479 U.S. 852 (1986). The cases have been filed pursuant to New York’s one-year revival statute for certain toxic torts, da including alleged asbestos related torts, 1986 N.Y. Laws, ch. 682, § 4. To manage the litigation, all of the cases in the Southern and Eastern Districts were assigned for pre-trial purposes to Judge Sifton. Racich, 887 F.2d at 395. At a pretrial conference on November 4, 1988, the court proposed that another asbestos tort case, Higgins v. Raymark Industries, Inc., CV-87-0537 (S.D.N.Y.), be consolidated with Johnson which was scheduled for trial on November 7, 1988. The trial court ordered on November 7, 1988 that Higgins and Johnson be consoli- dated for trial. Plaintiff Higgins, a chipper and caulker, whose work included chipping off welded sections to prepare for repair work of others, was alleged to have died because of exposure to asbestos while at the Brook- lyn Navy Yard from approximately 1946 to 1966. Appellee-plaintiff, John Johnson (plaintiff), an electri- cian’s helper, alleged that he had contracted lung disease while working at the Brooklyn Navy Yard from 1942 to 1945 by inhaling asbestos fibers during this employment. In Johnson and Higgins compensatory and punitive damages were sought for claims sounding in negligence and strict liability for defendants’ failure to warn of the health risks of their asbestos-containing products. The Court declined to trifurcate or bifurcate the trial to separate issues of causation and compensatory dam- ages from issues of liability and punitive damages. Appellants’ motions to have separate juries consider claims of liability and punitive damages in Johnson, apart from claims in Higgins, were denied. Appellants’ motion to preclude all evidence of knowledge post-1945 in relation to plaintiff Johnson was denied. Eight defen- dants settled and one filed a petition in bankruptcy prior Sa to trial. The Higgins and Johnson cases proceeded to trial against defendants Celotex, Owens-Illinois and Raymark Industries, Inc. (Raymark). The jury rendered a verdict for the plaintiffs in both cases. In Higgins, plaintiff was awarded $1 million in compensatory dam- ages and $3 million in punitive damages, divided equally among Celotex, Raymark and Owens-Illinois. In John- son compensatory damages were $350,000 (Celotex 12.5%, Raymark 12.5%, Owens-Illinois 5.0%, seven settling co-defendants 10% each), and punitive damages were assessed as follows: Celotex $1 million, Raymark $1 million and Owens-Illinois $800,000. Plaintiff Ann Marie Johnson was awarded $30,000 for loss of services. After the verdict, but before entry of judgment, it was discovered that Celotex had never been named or served as a defendant in the Higgins case. Further, since Flor- ida was the principal place of business of Celotex and the residence of plaintiff in Higgins, the trial court determined there was lack of diversity as to Celotex. In response to post-trial motions the Court ordered an amendment to the pleadings to add Celotex as a party- defendant pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. The Court then dismissed the com- plaint in the Higgins case as to Celotex for lack of juris- diction and retained its diversity jurisdiction over defendants Raymark and Owens-Illinois. A subsequent bankruptcy proceeding has stayed this case with regard to Raymark. FACTS Plaintiff John Johnson, an employee of the United States Navy, worked as an electrician’s helper at the 6a Brooklyn Navy Yard from 1942 to 1945. The Brooklyn Navy Yard covered an area of about three miles and in the entire yard there were approximately 20 ships under construction or repair. He installed electrical wiring in new and older ships. Although Johnson did not work with any product that he knew contained asbestos, he worked in the vicinity of other tradespeople who installed asbestos insulation material on ships. Johnson could not identify by name any workers in his vicinity or the trade name or manufacturer of any asbestos materials used at the shipyard. Johnson recalled working on destroyers, battleships and in particular remembered working on the Jowa, the Missouri and the Franklin at the yard. He testified that his work area was always dusty and that he would brush off a very fine snow-like dust that accumulated on his clothes. Product identification testimony was based upon the testimony of other workers employed at the Navy Yard at approximately the same time as Johnson. The co- workers identified over a dozen makers of asbestos- containing products used at the Navy Yard at different times. In 1945, Johnson left the Navy Yard and was not later exposed to any other asbestos containing products. In 1985, after retirement, Johnson was diagnosed with a lung condition which was attributed to asbestos expo- sure. CONTENTIONS OF THE PARTIES Appellants contend the trial court abused its discre- tion in consolidating the Johnson and Higgins cases. They further urge the connection with plaintiff’s injury 7a and appellants’ products was insufficient as a matter of law. As to the issue of punitive damages, appellants maintain the Fourteenth Amendment bars an award of punitive damages because appellants have been subjected to repeated punitive damages for the same course of conduct. They also claim procedural due process viola- tions and contend that the punitive damages were not supported by the evidence as a matter of law. Lastly, appellants claim the improper conduct of the trial court together with inflammatory conduct by counsel for plaintiff and improper rulings allowed the jury to hear evidence that should not have been heard, all resulting in a verdict which was the result of pressure and preju- dice and which should be revised. Appellants seek reversal of the judgment, or in the alternative, request that the judgment be vacated and the case be remanded for a new trial as to all issues. Celotex requests that in the alternative, the punitive damage award should be vacated and the case remanded on the issue of punitive damages. Plaintiff seeks affirm- ance of the judgment below. DISCUSSION Consolidation Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate actions for trial when there are common questions of law or fact to avoid unnecessary costs or delay. Ellerman Eines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir. 1964), cert. denied, 382 U.S. 812 (1965); Zervos v. S.S. Sam Houston, 427 F. Supp. 500 (S.D.N.Y. 1976), aff’d, 636 F.2d 1202 (2d Cir. 1980). 8a Consolidation of tort actions sharing common ques- tions of law and fact is commonplace. See, e.g., Arnold v. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983); Kershaw v. Sterling Drug, Inc., 415 F.2d 1009 (Sth Cir. 1969). This is true of asbestos-related personal injury cases as well. See, e.g., Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (llth Cir. 1985); Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982), aff’d sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985); Wilson v. Johns-Manville Sales Corp., 107 F.R.D. 250 (S.D. Tex. 1985). The trial court has broad discretion to determine whether consolidation is appropriate. See, e.g., Midwest Community Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491 (N.D. Ill. 1983); Stemler v. Burke, 344 F.2d 393 (6th Cir. 1965). In the exercise of discretion, courts have taken the view that considerations of judicial econ- omy favor consolidation. See, e.g., Romacho v. Stanley, 567 F. Supp. 1417, 1419 n.2 (S.D.N.Y. 1983), aff’d sub nom. Morse v. Stanley, 732 F.2d 1139 (2d Cir. 1984). However, the discretion to consolidate is not unfettered. Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983) (en banc), cert. denied, 464 U.S. 1040 (1984). Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. Flintkote Co. v. Allis-Chalmers Corp., 73 F.R.D. 463 (S.D.N.Y. 1977). When exercising its discretion, the court must consider: {[W]hether the specific risks of prejudice and possi- ble confusion [are] overborne by the risk of incon- sistent adjudications of common factual and legal issues, the burden on parties, witnesses and availa- 9a ble judicial resources posed by multiple lawsuits, the length of time required to conclude multiple Suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. Hendrix, 776 F.2d at 1495 (quoting Arnold, 681 F.2d at 193). When considering consolidation, a court should also note that the risks of prejudice and confusion may be reduced by the use of cautionary instructions to the jury and verdict sheets outlining the claims of each plaintiff. Id. In the instant case, the court properly exercised its discretion in consolidating these two cases for trial. Courts in the Southern and Eastern Districts of New York have used the criteria outlined in an unreported Maryland district court case, Jn re All Asbestos Cases Pending in the United States District Court for the Dis- trict of Maryland, slip op. (D. Md. Dec. 16, 1983) (en banc), (hereinafter Jn re Maryland Asbestos Cases) as a guideline in determining whether to consolidate asbestos exposure cases. See, e.g., In re Joint Eastern and South- ern Districts Asbestos Litigation, 125 F.R.D. 60, 64 (E.D.N.Y./S.D.N.Y. 1989); In re Joint Eastern and Southern Districts Asbestos Litigation, slip op. at 7 (E.D.N.Y./S.D.N.Y. Jan. 16, 1990). In Jn re Maryland Asbestos Cases, the criteria included: ‘‘(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged ... .’’ In re Maryland Asbestos Cases at 3. Johnson and Higgins had the following characteristics: (1) common worksite; 10a (2) similar occupation to the extent that both workers were exposed to asbestos in a bystander capacity (they worked in trades that did not involve direct handling of asbestos products); (3) Johnson’s period of exposure was from 1942 to 1945 while Higgins’ exposure was from approximately 1946 to 1966; (4) Johnson con- tended that he suffered from asbestosis and asbestosis- related pleural disease while it was alleged that Higgins died as a result of asbestosis and lung disease; (5) John- son was living and Higgins was deceased; (6) Johnson and Higgins were both ready for trial; and (7) all plain- tiffs were represented by the same counsel. Instructions were given throughout the trial and in the charge to cau- tion the jury to consider each plaintiff’s claims individu- ally. Two separate verdict forms were provided to the jury, one for Johnson, the other for Higgins. An appellate court will not disturb a trial court’s deci- sion to consolidate unless a clear abuse of discretion is shown. Hendrix, 776 F.2d at 1495. In the instant case, the trial court was well within its discretion to consoli- date the two cases and the court acted throughout in a manner which ensured that each plaintiff’s claim was considered separately. Connection Between Plaintiff’s Injury and Appellants’ Product In order to succeed on his claim, plaintiff had the burden of proving to the jury that he was exposed to appellants’ merchandise and that it is more likely than not that this exposure was a substantial factor in his injury. Derdiarian yv. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980). Plaintiff had to establish that his injury was proximately lla caused by appellants’ asbestos and produce evidence identifying each appellant’s product as being a factor in his injury. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 110 S. Ct. 350 (1989). Piaintiff admits to presenting to the jury ‘fan unusually detailed circumstantial case.’’ Plaintiff contends that by the ‘‘cumulative and uncontradicted nature’’ of the case, the jury was able to conclude not only that there was exposure, but was compelled to come to that result. Plaintiff worked at the Navy Yard from 1942 to 1945 as an electrician’s helper on board ships including the Missouri, the Jowa and the Franklin. Testimony was provided by eleven men who worked at the Navy Yard in various capacities, some during the same time period as Johnson, some before and after plaintiff’s employ- ment. Witness James Shannon worked at the Navy Yard from 1940 to 1965 as a plumber’s helper and a welder. Shannon recalled working on the Jowa at some time between 1940 and 1944 and identified Philip Carey (Celotex) products, including fifty-pound bags of asbes- tos cement with the words ‘‘Philip Carey’’ written on them, and Owens-Illinois products, including asbestos pipe covering and the brown boxes containing this mate- rial both bearing the name ‘‘Owens-Illinois,’’ as being in use during that time period on board the Jowa. Shan- non’s testimony indicated that the only two ships he worked on during the time period 1940-1944 were the North Carolina and the Jowa. He remembered working first on the North Carolina, for at least one year and possibly two, before working on the Jowa. From his tes- timony, the jury could infer that he worked on the Jowa during the latter part of this time frame which would l2a place Shannon and Johnson on the Jowa at the same time. Several of the witnesses testified as to the close inter- action of the different crews working together. Moe Rapchik, a sheet metal worker from 1941 to 1945 who worked on board the Jowa in 1942, stated that in the course of his employment he worked with ‘‘almost every different crew that the Navy Yard had to offer which was electricians, machinists, shipfitters, pipefitters and asbestos installers.’’ Joint Appendix at 322. Although Rapchik could not recall the specific company names of the products used on board the Jowa, he identified Owens-Illinois’ Kaylo pipe covering and Celotex’s Philip Carey asbestos cement as being in use during the time period 1941 to 1945 and stated that the products installed on the Jowa were the same types of products that were installed on every other ship he worked on. Rapchik described the asbestos fibers in general as being “‘fajll over the deck . . . . We crushed them with our feet as we walked . . . and that is how we got it all over our clothes and when we got home at night, we were white all over.’’ Joint Appendix at 329. These descrip- tions conform to plaintiff's own testimony of working in close, dusty surroundings with other crew members. Appellants contend that there was insufficient evi- dence to establish proximate cause and that therefore the case should not have gone to the jury. As an appel- late court, we are ‘‘ ‘bound to view the evidence in the light most favorable to [the plaintiff] and to give [him] the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reason- ably be drawn.’ ’’ Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.) (quoting , l3a Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 (1962)), cert. denied, 429 U.S. 885 (1976). As the Sixth Circuit noted in Pratt v. National Distillers & Chemical Corp., ‘‘We are not to reweigh evidence to reach our own conclusions about the cor- rectness of a jury’s decision; our task is simply to deter- mine whether reasonable jurors could, under any theory submitted to them, have resolved the dispute as they did.”’ 853 F.2d 1329, 1337 (6th Cir. 1988), cert. denied, 109 S. Ct. 1121 (1989). Reviewing the evidence in the light most favorable to the plaintiff, we find that proxi- mate cause existed and that the jury’s verdict must be upheld. Punitive Damages Appellants contend that the Fourteenth Amendment bars the award of punitive damages in this case because subjecting the appellants to repeated punitive damages violates their substantive due process rights. Appellants further maintain that their procedural due process rights were violated by the way in which the punitive damages claim was tried in this case. They also claim that the award of punitive damages was not supported by the evidence as a matter of law. Appellants argue that the multiple imposition of puni- tive damages against them for the same course of con- duct offends the fundamental fairness inherent in due process. They cite Browning-Ferris Indus. v. Kelco Dis- posal, Inc., __._ —U.S. ___., 109 S. Ct. 2909, 2921 (1989), where the Supreme Court explicitly refused to consider ‘‘whether due process acts as a check on undue jury discretion to award punitive damages in the absence of any express statutory limit’’ because this question was l4a not before the court. While refraining from addressing this issue directly, the opinions made clear that this question was a substantial one. Jd. at 2921 n.23. See also the opinions by Justice Brennan (joined by Justice Marshall), id. at 2923-24, and Justice O’Connor (joined by Justice Stevens), id. at 2924. This Court recently reviewed the issue of punitive damages in an asbestos-related personal injury action in Racich v. Celotex Corp., 887 F.2d 393. In Racich, appellant Celotex contended, inter alia, that the plain- tiffs claim for punitive damages was not permitted under New York’s one-year revival statute, 1986 N.Y. Laws, ch. 682, § 4, and that punitive damages were inappropriate as a matter of New York law and public policy. The Court found Celotex’s arguments to be unpersuasive. While Celotex raised a substantive due process claim, arguing that multiple imposition of puni- tive damages for the same course of conduct offended fundamental fairness, the Court did not reach that issue since Celotex did not preserve it for appellate review. Jd. at 398. In the instant case, the substantive due process claim that multiple imposition of punitive damages for the same course of conduct violated fundamental fair- ness has been preserved on appeal by only one appel- lant, Owens-Illinois, who raised this issue in its Memorandum in Support of a Motion for a Judgment Notwithstanding the Verdict. Appellant Celotex failed to raise this due process argument prior to briefing for this appeal. A careful reading of Defendants’ Memorandum of Law in Support of Defendants’ Motion to Dismiss and for Summary Judgment does not bear out appellant Celotex’s contention that this claim was raised. We decline to set aside the punitive damages awarded by the jury since there has been insufficient proof to demon- 15a strate an unjust result of multiple imposition of punitive damages for the same course of conduct. Appellant Celotex asked this Court to take judicial notice of punitive damages in judgments against them in not only the Southern and Eastern Districts of New York, but in ‘‘appeals pending in other cases before this Court, as well as judgments entered in the dockets of the district courts of this and other circuits.’’ Reply Brief for Defendant-Appellant The Celotex Corporation at 14. Appellant Owens-Illinois noted that it advised the trial court of punitive damage awards made, but not paid, in two Southern District cases. Plaintiff contends that substantial portions of the punitive damages assessed have not been paid out by appellants and that in some cases which have been settled or are still on appeal, no punitive damages have been paid at all. Appellants themselves provide no documentation as to exactly how much money they have actually paid in punitive damages.’ The record here simply is insufficient to permit an examination of the claim that there is a multiple award of punitive damages offensive to the fundamental fairness inherent in due process. As the Court noted in Racich, ‘‘we do not write upon a clean slate... .”’ 887 F.2d at 399. In Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832, 835 (2d Cir. 1967), a claim was made that multiple awards of puni- tive damages based upon the same course of conduct was a violation of due process. The Court observed that there was ‘‘the gravest difficulty in perceiving how claims for punitive damages in such a multiplicity of 1 Owens-Illinois has advised the Court post-argument in this case, that a punitive damage award in the amount of $554,194.00 was recently paid by it in Passentino v. Raymark Indus., CV-87-5019 (S.D.N.Y.). l6a actions throughout the nation can be so administered as to avoid overkill.’’ Jd. at 839. The Court concluded, however, that ‘‘the New York cases afford no basis for our predicting that the Court of Appeals would adopt a rule disallowing punitive damages in a case such as {Roginsky], and the Erie doctrine wisely prevents our engaging in such extensive law-making on locai tort lia- bility... .’’ Id. at 841. In Racich, the Court pointed out that while we did not reject the argument that an award of punitive dam- ages unless governed by precise standards violates due process, we did not accept that argument, ‘‘believing that the only course open . . . was ‘the more modest’ task of ‘assessing the sufficiency of the evidence within the framework’ of New York law.’’ 887 F.2d at 399 (quoting Roginsky, 378 F.2d at 841). The Court in Racich said: [W]e are here asked to hold. . . that the common- law standards applied by the courts of New York for imposition of punitive damages are unconstitu- tional, and that our own cases applying that law were in error... . This would be a far-reaching holding indeed, particularly in the context of mass tort litigation that suggests the need for a uniform, national rule on the issue. Under all the circum- stances, we believe that such a step, if it is to be taken (and we express no view as to that), is best left for Congress or for higher judicial authority. Id. (citations omitted). We follow this same course, and leave for another day and a better documented record the question of whether successive awards are violative of due process. 17a In the instant case, the trial judge informed the jury in his charge that punitive damages may be awarded if plaintiffs ‘‘clearly and convincingly established that the acts of a defendant [the jury was] considering causing the injury you [sic] complained of were wanton and reckless.’’ Joint Appendix at 2123. An act was defined as wanton and reckless when ‘‘done in such a manner and under such circumstances as to show heedlessness and an utter disregard of the results upon the rights and safety of others that may flow from doing the act, or in the manner in which it is done.’’ Jd. at 2124. No claim has been made by appellants that this charge was not in accordance with New York law. A review of the evidence shows that the award of punitive damages was supported by the evidence as a matter of law. Plaintiff produced evidence at trial through expert witnesses, medical reports and docu- ments from which the jury could reasonably conclude that appellants acted in a wanton or reckless manner. For example, plaintiff's expert witness testified that a link between asbestos and lung cancer was suspected as early as 1930 and that this link was considered to be probable shortly after 1940. Another expert witness stated in his deposition that by 1942 there were enough cases of the association between lung cancer and asbes- tos to include this information in a medical textbook on Occupational cancer. A former employee of Owens- Illinois testified that workers at a New Jersey plant, including plant executives, wore respirators in the areas of loose raw material including asbestos. The jury was free to conclude from this and other evidence presented that appellants knew or should have known of the dan- gers of asbestos and did not adequately protect or warn 18a users of asbestos, thereby acting in a wanton or reckless manner. Appellants further maintain that their procedural due process rights were violated by the manner in which the punitive damages claim was tried. Owens-Illinois specifi- cally contends that the consolidation of Johnson and Higgins and the failure to erect procedural safeguards during the consolidated trial violated appellants’ due process rights. Since we have found the consolidation was not an abuse of discretion, and since the trial judge carefully instructed the jury throughout the trial to con- sider each plaintiff’s claims individually, there was no need to provide other procedural safeguards concerning the consolidation. Owens-Illinois admits that it never specifically made a request for bifurcation of the damages aspect of the punitive damages claim, but argues that it did make a motion to bifurcate the entire punitive damages claim as well as a motion to trifurcate all triable issues. Appel- lant further argues that the trial judge granted bifurca- tion in a previous asbestos-related personal injury case. Plaintiff contends that the trial court invited appellants to bifurcate the damages aspect of the punitive damages claim and that appellants made a tactical decision not to give the jury two separate opportunities to assess dam- ages against them. Regardless of appellants’ motives in fashioning a motion for bifurcation, the fact that bifur- cation did not occur is not necessarily prejudicial to appellants. The decision to bifurcate is within the discre- tion of the trial judge. Jn re Master Key Antitrust Liti- gation, 528 F.2d 5, 14 (2d Cir. 1975). The fact that a previous case tried by the same judge was bifurcated has no bearing on the instant case. 19a Conduct of the Court and Counsel Appellants contend that improper conduct of the trial court and inflammatory conduct by plaintiff’s counsel during summation denied them a fair and impartial trial. Owens-Illinois alleges specifically that counsel described witnesses as ‘‘liar[s]’’, ‘‘sleaze’’ and *‘clown[s}.’" Appellants contend they were prejudiced both by counsel’s use of the words ‘‘evil’’ and **vicious’’ to describe them, and counsel’s characteriza- tion of appellants’ defense as ‘‘obscene’’, ‘‘ugly’’ and “‘ridiculous.”’ Appellants also complain of counsel’s invocation of the ‘‘Golden Rule’’ (do unto others as you would have them do unto you) and the use of a strategy that included an appeal to class prejudice. This Court finds that counsel’s behavior did not rise to the level of denying appellants a fair and impartial trial. Throughout the normal course of the trial and in his final charge, the trial judge instructed the jury to decide the case in a rational manner based on the evidence pre- sented and not on emotions, sympathy, prejudice, or bias. In denying appellants’ motion for mistrial, the trial judge determined that none of the derogatory descriptive Statements complained of was so inflammatory as to require a new trial. The court found that all but two of the counsel’s alleged appeals to the Golden Rule argu- ment related to liability only and not damages and were therefore not improper. Burrage v. Harrell, 537 F.2d 837 (Sth Cir. 1976). The remaining two instances were determined to be of a nature that would not unduly affect the jury in light of the judge’s charge. The appeal to class prejudice was found to be of a class of remarks which are not per se grounds for a new trial and in the 20a context of the entire summation, did not create undue passion. We agree. Great discretion is to be given the judge who was present throughout the trial and is best able to determine the effect of the conduct of counsel on the jury. Arnold, 681 F.2d at 194. Appellants contend that the tria! judge failed to con- trol the behavior of plaintiff’s counsel and that the judge himself contributed to an atmosphere not condu- cive to fair play by questioning the plaintiff and coach- ing his answers. Celotex points specifically to two exchanges between the judge and the plaintiff.” 2 The judge asked Mr. Johnson ‘‘to remember what it was like back then and select the words that will describe it sufficiently so that these people here, who weren’t there, can, in their minds, have some idea of what you saw.’’ The judge then went on to question Mr. Johnson about what his work site looked like. Joint Appendix at 15. In another instance, after plaintiff had described his feelings when learning of the results of his x-ray, the judge engaged Mr. Johnson in the following colloquy: THE Court: Before you go on, since the jury is going to have to make some decisions on this, I think we ought to get a little more on this than we have. When you talked to Doctor Spinnato in December, he said go and have the CAT scan and pulmonary func- tion test. I imagine you had some reaction to what he said to you. THE WITNESS: He just said he seen [sic] some spots on the X-ray. THE Court: Did you react to that or no? THE WITness: I didn’t know what to think. I didn’t know what was wrong. THE Court: Let me suggest some words to you over a different range and tell me if those—if any of these is an adequate explana- tion of what you were feeling. These are a whole bunch of alternatives not meant to suggest that any One is appropriate. . . . The question is whether any of these words, if any of these are appropriate. If none are appropriate, tell me. 2la The trial judge also brought to the attention of all counsel that he had heard testimony of one of appel- lants’ expert witnesses in a previous case and had found the witness to be less than credible. One defense counsel expressed concern that the judge could sit fairly on the instant case and stated that the judge had been acting in an uncomplimentary manner throughout the witness’ testimony. The judge denied defense counsel’s character- ization of his manner during the testimony. It is well settled that a judge is authorized to ask questions of a witness which may aid the understanding of the jury. United States v. Lamont, 565 F.2d 212, 220 (2d Cir. 1977) cert. denied, 435 U.S. 914 (1978). In the instant case, Mr. Johnson has been described by his counsel and an expert appellant witness as a man of few words. It would appear then, that the judge was merely attempting to clarify matters that seemed to call for fur- ther explanation, as the judge told the jury in his charge. As to the manner of the judge throughout the testi- mony of the expert witness, we are satisfied that his instructions to the jury cured even the appearance of any impropriety.’ United States v. Robinson, 635 F.2d A reaction of calm, resigned, depressed, scared, are any of those appropriate? THE WITNESS: Depressed and scared. Joint Appendix at 31-32. 3. ~—‘ The judge stated: Now, I don’t reach a determination myself or express any opin- ion as to how you should decide the facts of the case; that’s your function. That's why we have jurors. (footnote continued) 22a 981, 985 (2d Cir. 1980), cert. denied, 451 U.S. 992 (1981). CONCLUSION For the above-stated reasons the judgment of the dis- trict court is affirmed. -- MAHONEY, Circuit Judge, concurring in part and dis- senting in part: I agree with the majority that the district court’s deci- sion to consolidate Higgins and Johnson was a permissi- ble exercise of discretion, that a reasonable jury could find a causal connection between appellants’ products and plaintiff’s injury, and that there is no basis for reversal in the conduct of the trial court and plaintiff’s counsel. I respectfully dissent, however, from the major- ity’s conclusion that punitive damages are adequately supported by the evidentiary record, and would reverse the award of punitive damages as a matter of law. I accordingly would not reach, and do not join the major- ity’s consideration of, appellants’ constitutional objec- tions to the imposition of punitive damages. It’s not my function to decide any of the facts in the case, and I haven't expressed, nor have I intended to convey any view as to how the facts are to be decided; as to which witnesses are or aren’t worthy of belief; as to what facts are or are not established; or as to what inferences ought to be drawn from the evidence. If any expression of mine during the course of this trial has seemed to indicate an opinion regarding any of these matters, I instruct you to disregard that expression entirely. Joint Appendix at 2084. 23a Our tort law system reserves punitive damages for those extraordinary cases where an extra measure of payment—beyond full compensation for injuries—is thought to be necessary ‘‘for the purpose of punishing the defendant, of teaching the defendant not to do it again, and of deterring others from following the defen- dant’s example.’’ W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts § 2, at 9 (Sth ed. 1984). Thus, for example, punitive damages may be deemed appropriate where a defendant, while not intending to injure a plaintiff, exhibits ‘‘such a con- scious and deliberate disregard of the interests of others that his conduct may be called wilful or wanton.’’ Jd. at 10. The case before us involves an application of that theory. As the majority notes, the district court’s jury instruc- tion required a determination that defendant’s conduct was ‘‘wanton or reckless’’ to sustain an award of puni- tive damages, and this is a correct statement of New York law. As we have said, however, in another diver- sity case where we undertook a thorough review of the applicable New York precedents, New York law contem- plates that ‘‘the recklessness that will give rise to puni- tive damages must be close to criminality, see 14 N.Y. Jur., Damages § 181 p. 41, and ... , like criminal conduct, it must be ‘clearly established.’ ’’ Roginsky v. Richardson-Merrill, Inc., 378 F.2d 832, 843 (2d Cir. 1967) (Friendly, J.). We went on to quote, id., the defi- nition in N.Y. Penal Law § 15.05(3) (McKinney 1987), since unchanged, as setting forth New York’s view of recklessness. Section 15.05(3) provides in pertinent part: A person acts recklessly with respect to a result . when he is aware of and consciously disre- 24a gards a substantial and unjustifiable risk that such result will occur . . .. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. I do not regard the evidence in this case as adequate for submission of punitive damages to the jury under these standards. The evidence at trial established that during the time Johnson worked in the Brooklyn Navy Yard, appellants were aware that the properties of asbestos were such that it could, at some level of expo- sure, injure a human being. From this, it is possible rea- sonably to conclude that appellants had a duty to warn Or otherwise safeguard persons such as Johnson, and must now compensate him for whatever injuries are attributable to their failure to do so. The award of com- pensatory damages is therefore sustainable, even though Johnson never worked in an asbestos plant, and did not work directly with asbestos-containing products in the Brooklyn Navy Yard. In the circumstances, the jury did not exceed its authority in determining that appellants should have known that Johnson, and others similarly Situated, were being put at risk. Punitive damages, however, are not properly charge- able against a defendant who merely ‘‘shouid have known’’ of the risk in question. It must be shown that the defendant was aware of the risk, and that he con- sciously disregarded it. See Roginsky, 378 F.2d at 843 (punitive damages proper where manufacturer shown ‘“‘to have become aware of danger and to have done nothing, deliberately closing its eyes’’). There has been no such showing here. All the evidence to which John- son directs us relates to actions, correspondence and lit- 25a erature concerning asbestos processing plants, where workers had direct and sustained exposure to high con- centration levels of asbestos fibers. This record contains no evidence that either medical researchers or asbestos manufacturers possessed, in the mid 1940s, information establishing, or even predicting, that ‘‘bystanders’’ might experience unsafe levels of exposure in shipyards where finished hardbound insulation products contain- ing asbestos were in use. The award of punitive damages is, therefore, in my view unsustainable. The majority reasons that the jury could conclude, on this record, ‘‘that appellants knew or should have known of the dangers of asbestos and did not ade- quately protect or warn users of asbestos, thereby acting in a wanton or reckless manner.’’ There are two prob- lems with this rationale. First, as I have already noted, a ‘‘should have known’’ formulation simply does not equate with recklessness under New York law; actual awareness is required. See Roginsky, 378 F.2d at 843; N.Y. Penal Law § 15.05(3). Second, the majority paints with much too broad a brush, as I see it, in its reference to ‘‘the dangers of asbestos.’’ The clear implication is that once a product is shown to be dangerous to some persons under some circum- stances, punitive damages can be awarded against a manufacturer who fails to anticipate its subsequently discovered propensity to endanger other persons in markedly different circumstances. This is hardly the *“‘recklessness ... close to criminality’? which we described in Roginsky as the standard for awarding punitive damages under New York law. As Judge Friendly there said, ‘‘error in failing to make what hind- sight demonstrates to have been the proper response— 26a even ‘gross’ error—is not enough to warrant submission of punitive damages to the jury.’’ 378 F.2d at 843. I therefore respectfully dissent from the majority’s affirmance of the jury’s awards of punitive damages. 27a UNITED STATES COURT OF APPEALS SECOND CIRCUIT United States Courthouse Foley Square New York 10007 (212) 791-0103 ELAINE B. GOLDSMITH Clerk Date: April 20, 1990 RE : JOHNSON V THE CELOTEX CoRrP. Docket No.: 89-7484, 89-7542 Gentlemen: /Madam: The court has rendered a decision in the above-entitled case. The decision of the district court has been affirmed as of March 20, 1990, the judgment was entered on that date and copies of the opinion were mailed to all counsel. Enlcosed please a corrected opinion by Judge Carman and revised con- currence and dissent by Judge Mahoney. A copy of the opinion will be mailed to you. Additional cop- ies Of the opinion may be obtained from this office in accordance with § 0.17(7) of the rules of this court supple- menting the Federal Rules of Appellate Procedure. Very truly yours, ELAINE B. GOLDSMITH, Clerk by O.M. GEORGE O.M. George Deputy Clerk 056 1/21/86 28a [CORRECTED OPINION] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT > Nos. 341, 342—August Term, 1989 (Argued: November 2, 1989 Decided: March 20, 1990) Docket Nos. 89-7484, 89-7542 > JOHN E. JOHNSON and h/w ANN MARIE JOHNSON, Plaintiffs-Appellees, —against— THE CELOTEX CORPORATION, OWENS-ILLINOIS, INC., Defendants-Appellants. Before: MINER and MAHONEY, Circuit Judges, and CARMAN, Judge.* a ae Defendant-appellant The Celotex Corporation appeals from a judgment entered after a jury verdict and from orders of the United States District Court for the South- * Honorable Gregory W. Carman, Judge, United States Court of International Trade, sitting by designation. 29a ern District of New York regarding Joint Eastern and Southern Districts Asbestos Litigation, (Sifton, J.), denying its motions for judgment notwithstanding the verdict, or, in the alternative, for a new trial and for a mistrial. Defendant-appellant Owens-Illinois, Inc. appeals from the same judgment and from orders deny- ing its motion for judgment notwithstanding the verdict and its motion for a new trial or, in the alternative, for a remittitur. Affirmed. Judge Mahoney concurs in part and dis- sents in part in a separate opinion. — STEVEN J. PHILLIPS, New York, New York (LEVY PHILLIPS & KONIGSBERG, Diane Paolicelli, New York, New York, of counsel), for Plaintiffs-Appellees. ANDREW T. BERRY, Newark, New Jersey (MCCARTER & ENGLISH, Newark, New Jersey, of counsel), for Defendant- Appellant The Celotex Corporation. FRANK H. SANTORO, Hartford, Connecticut (DANAHER, TEDFORD, LAGNESE & NEAL, P.C., Joyce A. Lagnese, Paul J. Narducci, Wendy W. Wanchak, Hart- ford, Connecticut, of counsel), for Defendant-Appellant Owens-Illinois, Inc. 30a CARMAN, Judge: Defendant-appellant The Celotex Corporation (Celo- tex or appellant) appeals from a judgment entered in the Southern District of New York after a jury trial before Charles P. Sifton, J., regarding Joint Eastern and Southern Districts Asbestos Litigation, awarding com- pensatory and punitive damages and damages for loss of consortium in an asbestos products liability personal injury case. Celotex appeals from orders denying its motion for judgment notwithstanding the verdict, or in the alternative, a new trial and for a _ mistrial. Defendant-appellant, Owens-Illinois, Inc. (Owens- Illinois or appellant) appeals from the same judgment and orders denying its motion for judgment notwith- standing the verdict and its motion for a new trial or, in the alternative, for a remittitur. Appellants request us to reverse the judgment below or, in the alternative, vacate the judgment and remand for a new trial. In the alternative, appellants ask us to vacate the punitive damages award and remand for a new trial on the issue of punitive damages. BACKGROUND This appeal is one of many which arises from thou- sands of cases filed against manufacturers and producers of asbestos, resulting in unparalleled litigation in Ameri- can tort law. See Racich v. Celotex Corp., 887 F.2d 393, 394 (2d Cir. 1989); Jn re School Asbestos Litigation, 789 F.2d 996, 1000 (3d Cir.), cert. denied, 479 U.S. 852 (1986). The cases have been filed pursuant to New York’s one-year_revival statute for certain toxic torts, 3la including alleged asbestos related torts, 1986 N.Y. Laws, ch. 682, § 4. To manage the litigation, all of the cases in the Southern and Eastern Districts were assigned for pre-trial purposes to Judge Sifton. Racich, 887 F.2d at 395. At a pretrial conference on November 4, 1988, the court proposed that another asbestos tort case, Higgins v. Raymark Industries, Inc., CV-87-0537 (S.D.N.Y.), be consolidated with Johnson which was scheduled for trial on November 7, 1988. The trial court ordered on November 7, 1988 that Higgins and Johnson be consoli- dated for trial. Plaintiff Higgins, a chipper and caulker, whose work included chipping off welded sections to prepare for repair work of others, was alleged to have died because of exposure to asbestos while at the Brook- lyn Navy Yard from approximately 1946 to 1966. Appellee-plaintiff, John Johnson (plaintiff), an electri- cian’s helper, alleged that he had contracted lung disease while working at the Brooklyn Navy Yard from 1942 to 1945 by inhaling asbestos fibers during this employment. In Johnson and Higgins compensatory and punitive damages were sought for claims sounding in negligence and strict liability for defendants’ failure to warn of the health risks of their asbestos-containing products. The Court declined to trifurcate or bifurcate the trial to separate issues of causation and compensatory dam- ages from issues of liability and punitive damages. Appellants’ motions to have separate juries consider claims of liability and punitive damages in Johnson, apart from claims in Higgins, were denied. Appellants’ motion to preclude all evidence of knowledge post-1945 in relation to plaintiff Johnson was denied. Eight defen- dants settled and one filed a petition in bankruptcy prior 32a to trial. The Higgins and Johnson cases proceeded to trial against defendants Celotex, Owens-Illinois and Raymark Industries, Inc. (Raymark). The jury rendered a verdict for the plaintiffs in both cases. In Higgins, plaintiff was awarded $1 million in compensatory dam- ages and $3 million in punitive damages, divided equally among Celotex, Raymark and Owens-Illinois. In John- son compensatory damages were $350,000 (Celotex 12.5%, Raymark 12.5%, Owens-Illinois 5.0%, seven settling co-defendants 10% each), and punitive damages were assessed as follows: Celotex $1 million, Raymark $1 million and Owens-Illinois $800,000. Plaintiff Ann Marie Johnson was awarded $30,000 for loss of services. After the verdict, but before entry of judgment, it was discovered that Celotex had never been named or served as a defendant in the Higgins case. Further, since Flor- ida was the principal place of business of Celotex and the residence of plaintiff in Higgins, the trial court determined there was lack of diversity as to Celotex. In response to post-trial motions the Court ordered an amendment to the pleadings to add Celotex as a party- defendant pursuant to Rule 15(b) of the Federal Rules of Civil Procedure. The Court then dismissed the com- plaint in the Higgins case as to Celotex for lack of juris- diction and retained its diversity jurisdiction over defendants Raymark and Owens-Illinois. A subsequent bankruptcy proceeding has stayed this case with regard to Raymark. FACTS Plaintiff John Johnson, an employee of the United States Navy, worked as an electrician’s helper at the 33a Brooklyn Navy Yard from 1942 to 1945. The Brooklyn Navy Yard covered an area of about three miles and in the entire yard there were approximately 20 ships under construction or repair. He installed electrical wiring in new and older ships. Although Johnson did not work with any product that he knew contained asbestos, he worked in the vicinity of other tradespeople who installed asbestos insulation material on ships. Johnson could not identify by name any workers in his vicinity or the trade mame or manufacturer of any asbestos materials used at the shipyard. Johnson recalled working on destroyers, battleships and in particular remembered working on the Jowa, the Missouri and the Franklin at the yard. He testified that his work area was always dusty and that he would brush off a very fine snow-like dust that accumulated on his clothes. Product identification testimony was based upon the testimony of other workers employed at the Navy Yard at approximately the same time as Johnson. The co- workers identified over a dozen makers of asbestos- containing products used at the Navy Yard at different times. In 1945, Johnson left the Navy Yard and was not later exposed to any other asbestos containing products. In 1985, after retirement, Johnson was diagnosed with a lung condition which was attributed to asbestos expo- sure. CONTENTIONS OF THE PARTIES Appellants contend the trial court abused its discre- tion in consolidating the Johnson and Higgins cases. They further urge the connection with plaintiff’s injury 34a and appellants’ products was insufficient as a matter of law. As to the issue of punitive damages, appellants maintain the Fourteenth Amendment bars an award of punitive damages because appellants have been subjected to repeated punitive damages for the same course of conduct. They also claim procedural due process viola- tions and contend that the punitive damages were not supported by the evidence as a matter of law. Lastly, appellants claim the improper conduct of the trial court together with inflammatory conduct by counsel for plaintiff and improper rulings allowed the jury to hear evidence that should not have been heard, al! resulting in a verdict which was the result of pressure and preju- dice and which should be revised. Appellants seek reversal of the judgment, or in the alternative, request that the judgment be vacated and the case be remanded for a new trial as to all issues. Celotex requests that in the alternative, the punitive damage award should be vacated and the case remanded on the issue of punitive damages. Plaintiff seeks affirm- ance of the judgment below. . DISCUSSION Consolidation Rule 42(a) of the Federal Rules of Civil Procedure empowers a trial judge to consolidate actions for trial when there are common questions of law or fact to avoid unnecessary costs or delay. Ellerman Lines, Ltd. v. Atlantic & Gulf Stevedores, Inc., 339 F.2d 673 (3d Cir. 1964), cert. denied, 382 U.S. 812 (1965); Zervos v. S.S. Sam Houston, 427 F. Supp. 500 (S.D.N.Y. 1976), aff’d, 636 F.2d 1202 (2d Cir. 1980). 35a Consolidation of tort actions sharing common ques- tions of law and fact is commonplace. See, e.g., Arnold vy. Eastern Air Lines, Inc., 681 F.2d 186 (4th Cir. 1982), cert. denied, 460 U.S. 1102 (1983); Kershaw v. Sterling Drug, Inc., 415 F.2d 1009 (Sth Cir. 1969). This is true of asbestos-related personal injury cases as well. See, e.g., Hendrix v. Raybestos-Manhattan, Inc., 776 F.2d 1492 (llth Cir. 1985); Neal v. Carey Canadian Mines, Ltd., 548 F. Supp. 357 (E.D. Pa. 1982), aff’d sub nom. Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481 (3d Cir. 1985); Wilson v. Johns-Manville Sales Corp., 107 F.R.D. 250 (S.D. Tex. 1985). The trial court has broad discretion to determine whether consolidation is appropriate. See, e.g., Midwest Community Council, Inc. v. Chicago Park Dist., 98 F.R.D. 491 (N.D. Ill. 1983); Stemler v. Burke, 344 F.2d 393 (6th Cir. 1965). In the exercise of discretion, courts have taken the view that considerations of judicial econ- omy favor consolidation. See, e.g., Romacho v. Stanley, 567 F. Supp. 1417, 1419 n.2 (S.D.N.Y. 1983), aff’d sub nom. Morse v. Stanley, 732 F.2d 1139 (2d Cir. 1984). However, the discretion to consolidate is not unfettered. Arnold v. Eastern Air Lines, Inc., 712 F.2d 899 (4th Cir. 1983) (en banc), cert. denied, 464 U.S. 1040 (1984). Considerations of convenience and economy must yield to a paramount concern for a fair and impartial trial. Flintkote Co. v. Allis-Chalmers Corp., 73 F.R.D. 463 (S.D.N.Y. 1977). When exercising its discretion, the court must consider: {[W]hether the specific risks of prejudice and possi- ble confusion [are] overborne by the risk of incon- sistent adjudications of common factual and legal issues, the burden on parties, witnesses and availa- 36a ble judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits aS against a single one, and the relative expense to all concerned of the _ single-trial, multiple-trial alternatives. Hendrix, 776 F.2d at 1495 (quoting Arnold, 681 F.2d at 193). When considering consolidation, a court should also note that the risks of prejudice and confusion may be reduced by the use of cautionary instructions to the jury and verdict sheets outlining the claims of each plaintiff. Id. In the instant case, the court properly exercised its discretion in consolidating these two cases for trial. Courts in the Southern and Eastern Districts of New York have used the criteria outlined in an unreported Maryland district court case, Jn re All Asbestos Cases Pending in the United States District Court for the Dis- trict of Maryland, slip op. (D. Md. Dec. 16, 1983) (en banc), (hereinafter Jn re Maryland Asbestos Cases) as a guideline in determining whether to consolidate asbestos exposure cases. See, e.g., In re Joint Eastern and South- ern Districts Asbestos Litigation, 125 F.R.D. 60, 64 (E.D.N.Y./S.D.N.Y. 1989); Jn re Joint Eastern and Southern Districts Asbestos Litigation, slip op. at 7 (E.D.N.Y./S.D.N.Y. Jan. 16, 1990). In In re Maryland Asbestos Cases, the criteria included: ‘‘(1) common worksite; (2) similar occupation; (3) similar time of exposure; (4) type of disease; (5) whether plaintiffs were living or deceased; (6) status of discovery in each case; (7) whether all plaintiffs were represented by the same counsel; and (8) type of cancer alleged ... .’’ In re Maryland Asbestos Cases at 3. Johnson and Higgins had the following characteristics: (1) common worksite; 37a (2) similar occupation to the extent that both workers were exposed to asbestos in a bystander capacity (they worked in trades that did not involve direct handling of asbestos products); (3) Johnson’s period of exposure was from 1942 to 1945 while Higgins’ exposure was from approximately 1946 to 1966; (4) Johnson con- tended that he suffered from asbestosis and asbestosis- related pleural disease while it was alleged that Higgins died as a result of asbestosis and lung disease; (5) John- son was living and Higgins was deceased; (6) Johnson and Higgins were both ready for trial; and (7) all plain- tiffs were represented by the same counsel. Instructions were given throughout the trial and in the charge to cau- tion the jury to consider each plaintiff’s claims individu- ally. Two separate verdict forms were provided to the jury, one for Johnson, the other for Higgins. An appellate court will not disturb a trial court’s deci- sion to consolidate unless a clear abuse of discretion 1s shown. Hendrix, 776 F.2d at 1495. In the instant case, the trial court was well within its discretion to consoli- date the two cases and the court acted throughout in a manner which ensured that each plaintiff’s claim was considered separately. Connection Between Plaintiff’s Injury and Appellants’ Product In order to succeed on his claim, plaintiff had the burden of proving to the jury that he was exposed to appellants’ merchandise and that it is more likely than not that this exposure was a substantial factor in his injury. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980). Plaintiff had to establish that his injury was proximately 38a caused by appellants’ asbestos and produce evidence identifying each appellant’s product as being a factor in his injury. Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069, cert. denied, 110 S. Ct. 350 (1989). Plaintiff admits to presenting to the jury ‘fan unusually detailed circumstantial case.’’ Plaintiff contends that by the ‘‘cumulative and uncontradicted nature’’ of the case, the jury was able to conclude not only that there was exposure, but was compelled to come to that result. Plaintiff worked at the Navy Yard from 1942 to 1945 as an electrician’s helper on board ships including the Missouri, the Jowa and the Franklin. Testimony was provided by eleven men who worked at the Navy Yard in various Capacities, some during the same time period as Johnson, some before and after plaintiff’s employ- ment. Witness James Shannon worked at the Navy Yard from 1940 to 1965 as a plumber’s helper and a welder. Shannon recalled working on the Jowa at some time between 1940 and 1944 and identified Philip Carey (Celotex) products, including fifty-pound bags of asbes- tos cement with the words ‘‘Philip Carey’’ written on them, and Owens-Illinois products, including asbestos pipe covering and the brown boxes containing this mate- rial both bearing the name ‘‘Owens-Illinois,’’ as being in use during that time period on board the Jowa. Shan- non’s testimony indicated that the only two ships he worked on during the time period 1940-1944 were the North Carolina and the Jowa. He remembered working first on the North Carolina, for at least one year and possibly two, before working on the Jowa. From his tes- timony, the jury could infer that he worked on the Jowa during the latter part of this time frame which would 39a place Shannon and Johnson on the Jowa at the same time. Several of the witnesses testified as to the close inter- action of the different crews working together. Moe Rapchik, a sheet metal worker from 1941 to 1945 who worked on board the Jowa in 1942, stated that in the course of his employment he worked with ‘‘almost every different crew that the Navy Yard had to offer which was electricians, machinists, shipfitters, pipefitters and asbestos installers.’’ Joint Appendix at 322. Although Rapchik could not recall the specific company names of the products used on board the Jowa, he identified Owens-Illinois’ Kaylo pipe covering and Celotex’s Philip Carey asbestos cement as being in use during the time period 1941 to 1945 and stated that the products installed on the Jowa were the same types of products that were installed on every other ship he worked on. Rapchik described the asbestos fibers in general! as being ‘‘fajll over the deck . . . . We crushed them with our feet as we walked . . . and that is how we got it all over our clothes and when we got home at night, we were white all over.’’ Joint Appendix at 329. These descrip- tions conform to plaintiff's own testimony of working in close, dusty surroundings with other crew members. Appellants contend that there was insufficient evi- dence to establish proximate cause and that therefore the case should not have gone to the jury. As an appel- late court, we are ‘‘ ‘bound to view the evidence in the light most favorable to [the plaintiff] and to give [him] the benefit of all inferences which the evidence fairly supports, even though contrary inferences might reason- ably be drawn.’ ’’ Michelman v. Clark-Schwebel Fiber Glass Corp., 534 F.2d 1036, 1042 (2d Cir.) (quoting 40a Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696 (1962)), cert. denied, 429 U.S. 885 (1976). As the Sixth Circuit noted in Pratt v. National Distillers & Chemical Corp., ‘‘We are not to reweigh evidence to reach our own conclusions about the cor- rectness of a jury’s decision; our task is simply to deter- mine whether reasonable jurors could, under any theory submitted to them, have resolved the dispute as they did. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2716%3A1. Public record. Not legal advice.