Opposition Brief — Owens-Corning Fiberglas Corp. v. Adams

RIHES

NARY | Ov 2@ Wee

Wi > R ° 'f Ss

: \ OSE UB pa Qe

a | i

No. 92-844 rap

In The

Supreme Court of the United States

October Term, 1992

—___—. ’

OWENS-CORNING FIBERGLAS CORPORATION,

LEONARD ADAMS, et al.,

Ioonnndp

Kespondents.

— ’

Petition For A Writ Of Certiorari

To The Circuit Court of

Monongalia County, West Virginia

-——— *

RESPONSE TO PETITION FOR A

WRIT OF CERTIORAR

ee -_ —-— ¢ 2

Type A. Brett*

THEODORE GOLDBERG

HENDERSON & GoLpserc, [.C

1030 Fifth Avenue

Pittsburgh, PA 15219

(412) 471-3980

Scott S. SEGAL

SEGAL & Davis

810 Kanawha Blvd., East

Charleston, WV 25301

(304) 344-9100

Attorneys for Respondents

*Counsel of Record

BEST AVAILAB

1 eh aaa ian. 68 " sn trish! 2S IN Nile ASN. ie a

Saag ce ho

Ph, 7

4

QUESTIONS PRESENTED

1. Should a defendant be permitted to challenge an

award of punitive damages on grounds that it allegedly

violated the Due Process Clause of the Fourteenth

Amendment when:

(a) the defendant was offered, but declined,

the opportunity to present all relevant evi-

dence;

(b) the defendant filed objections and excep-

tions to the courts’ charge to the jury, but

the objections and exceptions raised no

consti.utional issues and did not offer more

specific instructions to address the pur-

ported constitutional infirmity;

(c) the defendant does not challenge on appeal

the sufficiency of the evidence on punitive

damages;

(d) the post-trial oral argument and the trial

court rulings from the bench addressed the

defendant’s contentions, a procedure

defendant tries to hide from this Court by

failing to order a transcript of the argu-

ment; and,

(e) the defendant appealed to the state’s high-

est appellate court, which heard and

rejected the arguments after briefing and

oral argument.

2. Should a defendant be permitted to raise the

issue of whether multiple punitive damage awards

exceed the amount necessary for deterrence and punish-

ment when:

ii

QUESTIONS PRESENTED - Continued

(a) the evidence of egregious conduct was suf-

ficient to submit the issue of punitive dam-

ages to the jury;

(b) the defendant was offered, but declined,

the opportunity to present relevant evi-

dence on this issue;

(c) there was no evidence of record as to the

defendant’s financial position, the number

of victims of its asbestos products, or the

amount of any punitive awards actually

paid by it for asbestos-related personal

injuries; and,

(d) such awards are permitted by state law

under the facts presented.

iii

TABLE OF CONTENTS

Page

ae a Ge . oy 9 rier i

J Be ae tay 8 oy | 2. er iv

8 1

ie Ot eS 1

REASONS FOR DENYING THE WRIT............. 7

Tg ae ae 8) |! 7

I. The Petition Presents No Basis Upon Which This

Court Can Conclude That The Punitive Damages

Assessed Against Petitioner Violated Due Pro-

COP ee eee TEL EL OTe EEE CET Eee 7

Il. The Petition Presents No Basis Upon Which This

Court Can Conclude That Multiple Punitive

Damage Awards Exceed The Amount Necessary

For Deterrence and Punishment ............... 16

Ne auc ceased ueesenedas 19

APPENDIX

Rules of Appellate Procedure, West Virginia

Supreme Court of Appeals ................... App. 1

Objections and Exceptions to Judge’s Charge to

Te TEER REE EE App. 9

iv

TABLE OF AUTHORITIES

Page

Cases

Bankers Life and Casualty Co. v. Crenshaw, 486 U.S.

FR CEPR SN EUVSN GENCE TENORS Too rm each Sosa ney ees 11

Billotti v. Legursky, 975 F.2d 113 (4th Cir. 1992)...... 13

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Dis-

posal, tnc., 492 US. 257 (19O8) wo cece veeeess 11, 18

Davis v. Celotex Corp., 420 S.E.2d 557 (W. Va. 1992)

PTT P CT UT TT OETT ETE Oe eT ET TTT eT OTT Tre S, 15, i7

Dunn v. Owens-Corning Fiberglas Corp., 774 F.

Supp. 929 (D.V.I. 1991), aff'd in part and vacated

in part sub nom., Dunn v. HOVIC, 1992 W.L.

228875 (Sept. 18, 1992), rehearing granted and

opinion vacated, 1992 W.L. 274786 (3d Cir. Oct. 8,

ow SPT Pee eee Tee Re eee ee Pepe ey TT eee %, 11

Fleming Landfill v. Garnes, 186 W. Va. 656, 413

Se” E it. 1) eee ee ee rerre rere ree ere 8, 9, 14

Fleming Landfill v. Garnes, 111 S. Ct. 2882 (1991)...... 8

Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th

Cir. 1991), cert. dented sub nom., Celotex Corp. v.

Cenpecere, 112 3. CE 1770 CESSES). ow can saccesans 11, 18

Coreen WH Semen, San U.S. TF (PRO «ak oc ve viccks snes 13

Friars v. Rivera, 454 US. 359 (1961)... ...........5.. 14

Jackson v. Johns-Manville Sales Corp., 781 F.2d 394

(5th Cir.), cert. denied, 478 U.S. 1022 (1986)........ 18

Johnson v. Celotex Corp., 899 F.2d 1281 (2d Cir.),

cert. denied sub nom. Celotex Corp. v. Johnson, 111

ee Is yucca Mev cbaccuwe eh rnacacceeneees 18

Keene Corp. v. Adams, 61 U.S.L.W. 3352 (U.S. Nov.

TC OEE SO: POE okie a cu kd nen eb eancusanes 1, 5, 18

Vv

TABLE OF AUTHORITIES —- Continued

Page

King v. Armstrong World Indus., Inc., 906 F.2d 1022

(5th Cir. 1990), cert. denied sub nom., Celotex

Coop. & Kine, 321 5S. Ch. E56 (IGP). «nk ss cccnccss 18

Leonen v. Johns-Manuille Corp., 717 F. Supp. 272 (D.

te eee rrr rere Cre ee er tye eT ree ery ore 18

McClesky v. Kemp, 481 U.S. 279, reh’g denied, 482

SE HU CUOMO 0 ois 05508 ncdbhn es raee ee hanekene 10

Morrissey v. Brewer, 408 U.S. 471 (1972) ............. 14

Owens-Corning Fiberglas Corp. v. Watson, 243 Va.

SOR, SES De Ge COMED ne 6560s ce ewes boas ox anv es 9

Owens-Illinois, Inc. v. Bolyard, 61 U.S.L.W. 3352

(U.S. Nov. 9, 1992) (No. 92-360)... 0.0... ccssesces 16

Owens-Illinois, Inc. v. Roby, 61 U.S.L.W. 3334 (U.S.

NOW, Z, BPRZ) GO. DEGR) s 65 occ cna vavewencewenns 10

Pacific Mutual Life Ins. Co. v. Haslip, 111 S. Ct. 1032

to | reer rrrrrr rr rer rrr: Tres: 7, 8, 10, 11, 14

Pennsylvania v. Finley, 481 U.S. 551 (1987)........... 13

Pote v. Jarrell, 186 W. Va 369, 412 S.E.2d 770 (1991)

pRADEREANEOA SARAEASRRONE REESE ee TE eee 13, 14, 15

Silkwood v. Kerr-McGee Corp., 464 U.S. 238 (1984)..... 8

Simpson v. Pittsburgh Corning Corp., 901 F.2d 277

(2d Cir.), cert. dismissed sub nom. Pittsburgh

Corning Corp. v. Simpson, 111 S. Ct. 27 (1990)

POTEET Te Te Pee Pe ee 11, 17, 18

State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812

i eee ere rr re re rey re PEt he 17

State v. Myers, 171 W. Va. 277, 298 S.E.2d 813

PT cern ACESS 17

vi

TABLE OF AUTHORITIES - Continued

Page

State ex rel. Lehman v. Strickler, 174 W. Va. 809, 329

ieee DEE (IPRS) bon sc vnccdscsscarelcouiadenseuess 17

United States v. Halper, 490 U.S. 435 (1989).......... 18

United States v. MacCollom, 426 U.S. 317 (1976)...... 13

Wells v. Smith, 171 W. Va. 97, 297 S.E.2d 872 (1982) ..... 8

Wolff v. McDonnell, 418 U.S. 539 (1974).............. 14

RULEs

West Virginia Rules of Appellate Procedure 3........ 5

West Virginia Rules of Appellate Procedure 4........ 1

West Virginia Rules of Appellate Procedure 4A....... 1

West Virginia Rules of Appellate Procedure 5........ 6

West Virginia Rules of Appellate Procedure 7........ 6

Supreme Court Rule 14.1(h)................ 2. eee eee 12

Supreme Court Rule 14.5 .......0ssccccdsweaeeteene’ 12

RULES INVOLVED

West Virginia Rules of Appellate Procedure 3, 4, 4A, 5

and 7 are reprinted in the Respondents’ Appendix at 1.

¢

STATEMENT OF THE CASE

This Petition is yet another attempt by an asbestos

defendant to have this Court reverse a punitive damages

award properly imposed under applicable state law, after

availing itself of all procedural protections at a full trial

of the merits of its liability to victims of its defective

products. The trial court record, as it actually is and not

as rewritten by Petitioner Owens-Corning Fiberglas Cor-

poration (“OCF”), amply supports the imposition of

punitive damages and leads to the simple conclusion that

Petitioner received all the process that was due. Indeed,

this Court recently denied a Petition for a Writ of Cer-

tiorari by another defendant in the same trial raising the

same issues as those raised herein. Keene Corp. v. Adams,

61 U.S.L.W. 3352 (U.S. Nov. 9, 1992) (No. 92-359).

As described in the Petition, Respondents brought

these cases against the manufacturers and sellers of the

asbestos products that caused their personal injury.

Thirty-nine (39) cases were consolidated into two groups

for trial: the Adams group was tried before Judge Larry

V. Starcher, and the Barnes group was tried before Judge

Robert V. Stone.

As stated in the Petition, OCF distributed asbestos-

containing Kaylo from the early 1950s. In 1958, OCF

purchased the manufacturing facilities for Kaylo, and

manufactured and sold the product through at least 1972.

Respondents submitted evidence to show that the distri-

bution and sale o Kaylo continued after production

ceased. At trial, there was overwhelming evidence justi-

fying the submission of punitive damages to the jury. An

internal memorandum dated January 7, 1942 established

OCF’s knowledge of the medical literature discussing the

lung and skin hazards of asbestos. (Pl. Exhibits 3 and 4).

In a letter dated August 29, 1945, OCF recognized that

asbestos is “the only silicate that has been determined by

lung pathologists to involve a lung hazard.” (Pl. Exhibit

503). A report dated February 7, 1952 by the Saranac

Laboratory and received by OCF stated, “every precau-

tion should be taken to protect workers against inhaling

the dust [created by Kaylo].” (Pl. Exhibits 32 and 33).

Four years later Dr. Gerrit Schepers, director of the Sar-

anac Laboratory, again informed OCF that asbestos

causes cancer and asbestosis. (Pl. Exhibits 501 and 502).

An internal memorandum dated September 17, 1963

stated: “Asbestos (as found in Kaylo) when breathed into

the lungs causes asbestosis which often leads to lung

cancer.” (Pl. Exhibit 5). OCF’s knowledge is also estab-

lished in documents dated 1965 and 1966. (Pl. Exhibits 8

and 9).

By 1966, one OCF official recognized that Kaylo

should bear a warning label. (Pl. Exhibit 12). Nonetheless,

subsequent documents revealed OCF’s “low gear” pro-

gram to replace asbestos and commitment “to delay this

requirement [of a warning label on Kaylo] as long as

possible.” (Pl. Exhibits 13 and 21). Further, in October of

1973, OCF was still selling its inventory of asbestos-laden

Kaylo at bargain rates, even though it had ceased manu-

facturing the product. (PI. Exhibit 25).

Dr. Schepers, who studied OCF’s Kaylo product at

the Saranac Laboratory, testified for a full day concerning

the unequivocal information he provided to OCF in

1955-1956 concerning the risk of cancer and lung scarring

posed by its asbestos product to employees as well as

users of asbestos in the construction trades. (Trial Tran-

script, Oct. 22, 1990, Vol. IV, pp. 641-54).

OCF correctly points out that the trial courts granted

directed verdicts in favor of the defendants in three cases,

and the remaining 36 cases went to the jury. Based on the

substantial, indeed overwhelming evidence of OCF’s

actual knowledge of the hazards of asbestos and refusal

to warn of those hazards, the trial courts submitted the

issue of punitive damages to the jury.

The Petition at 6-7 accurately states the courts’ charge

on punitive damages. This charge clearly articulates the

purpose of punitive damages and the standard of conduct

warranting punitive damages. Also, the courts clearly

charged that punitives may be awarded only if compen-

satory damages are awarded and clearly stated that the

award of punitives was not obligatory.

Significantly, OCF’s Statement of the Case does not

discuss OCF’s offer of different or more specific instruc-

tions. In fact, OCF did file Objections and Exceptions to

Judge’s Charge to Jury on or about November 19, 1990.

(Respondents’ Appendix at 9). The sole issue regarding

punitive damages preserved in these objections was

whether such damages are available against a product

manufacturer that introduces some evidence of a warn-

ing. The issue of whether OCF warned was hotly con-

tested, and even OCF’s evidence showed at hest that it

first applied a warning label in December 1966, long after

OCF knew of the dangers of its products. OCF did not

raise at the trial level the constitutional objections it now

advances. Additionally, any argument that Respondents

submitted insufficient evidence of punitive damages has

been abandoned in the Petition before this Court.

The Petition is also interesting in that OCF argues

that in ruling on motions for a directed verdict on puni-

tive damages, the courts’ reasons for denying defendants’

motions focused solely on the evidence relating to defen-

dants’ conduct. That focus was entirely proper given that

evidence of defendants’ conduct was the only evidence

relevant to punitive damages before the trial court, that

the evidence of warnings was the only issue that OCF

preserved in its objection to the charge, and the complete

absence of any evidence from which a fact finder could

assess whether any or all punitive damage awards were

paid and constituted sufficient deterrence. Even if OCF

had “informed the courts that it had been subjected to

previous awards of punitive damages,” (Petition at 13),

OCF never indicates that the trial courts refused to per-

mit OCF to introduce evidence of prior punitive damage

awards to be considered in limitation of or mitigation of

punitive damages in these cases. OCF even failed to offer

evidence post-trial, instead providing “information,” thus

insuring the trial courts’ inability to consider it. In the

absence of such evidence, there was, of course, nothing

for the jury, the trial courts or the appellate court to

consider.

Based on the evidence, the juries in each courtroom

awarded compensatory damages to each plaintiff ranging

in amounts from $15,000 to $324,000. The two juries

awarded total compensatory damages of $1,846,040 and

total punitive damages against OCF of $4,380,000. The

jury in Judge Starcher’s courtroom awarded punitive

damages against Keene Corporation, the other defendant

that went to verdict, in an amount of $5,000 per plaintiff.

See Response to Petition for a Writ of Certiorari at 3-4,

Keene Corp. v. Adams, No. 92-359 (U.S.). In all of the cases,

the compensatory damage awards were substantially

reduced by offsets due to plaintiffs’ settlements with

other defendants, and in nine (9) cases OCF was not

required to pay any compensatory damages at all due to

offsets.

In light of the feeble record created by OCF at trial

despite every opportunity to admit any relevant, admissi-

ble evidence, the trial courts simply might have dis-

missed OCF’s belated attempts to reverse the punitive

damage awards based on vague constitutional notions

unsupported by any evidence. However, the trial courts

did not do so. On February 27, 1991, they conducted a

hearing on defendants’ post-trial motions, and rendered a

decision from the bench on each issue raised. The deci-

sions of the trial court do not appear in the printed record

ordered by OCF. One can only speculate that OCF never

requested a transcript because the trial courts’ findings

were inconsistent with OCF’s contentions.

Thereafter, the trial courts entered judgments in all

cases on March 12, 1991. OCF exercised its right to peti-

tion to the West Virginia Supreme Court and filed a

lengthy petition for appeal on October 30, 1991.! On or

1 Under W. Va. R. App. P. 3, the period of time for filing a

petition for appeal is four months. However, the parties agreed

to extend the period to November 1, 1991.

about January 15, 1992, OCF filed a supplement to its

petition. In this procedure, OCF had the right to desig-

nate any portions of the record relevant to its petition.

Respondents filed a brief in opposition. Pursuant to W.

Va. R. App. P. 5, OCF as Petitioner, but not Respondents,

had an opportunity to present oral argument on the peti-

tion. (Respondents’ Appendix at 6). Given the lack of a

record, it is not surprising that, after oral presentation,

the West Virginia Supreme Court of Appeals refused the

petition for appeal by Order dated February 5, 1992.

Despite the fact that the period for filing a petition

for appeal had expired on November 1, 1991, OCF filed a

notice of renewal of its petition for appeal. Pursuant to W.

Va. R. App. P. 7, such notice may only be filed within the

period of time for filing the original petition. Despite the

fact that this notice was out of time, the West Virginia

Supreme Court entertained the renewal and on July 21,

1992, refused the petition for appeal.2 OCF’s Petition fora

Writ of Certiorari followed.

In short, OCF waived its right to challenge the consti-

tutionality of punitive damages. In the Petition before

this Court, OCF does not point to one shred of evidence

that it offered to demonstrate that the punitive damages

were excessive; OCF never even attempted to present

evidence of its net worth or the total amount of satisfied

punitive damage awards against it, or of the ratio

2 Given that the notice of renewal was untimely, the July 21,

1992 Order was a nullity. OCF should have petitioned for a Writ

of Certiorari within 90 days of the February 5, 1992 Order, and

having failed to do so, this Court may dismiss OCF’s Petition as

untimely.

between its net worth and satisfied punitive damage

awards. In short, OCF presented no evidence that it had

been punished enough.

REASONS FOR DENYING THE WRIT

SUMMARY OF ARGUMENT

OCF’s Petition for a Writ of Certiorari presents no

issue reviewable by this Court. OCF contends that the

award of punitive damages offends due process. How-

ever, the awards are low compared to others upheld by

courts under identical circumstances. Further, the evi-

dence was sufficient to submit the issue of punitive dam-

ages to the jury, the trial courts did not refuse OCF the

opportunity to introduce additional evidence in mitiga-

tion of punitives, and OCF did not object to the charge to

the jury on the grounds now asserted nor did it offer

more specific instructions on the constitutional issues.

Moreover, punitive damages are governed by state

law. The awards of punitive damages against OCF com-

port with principles of applicable West Virginia law, and

any challenge to the awards on substantive grounds must

be rejected.

I. The Petition Presents No Basis Upon Which This

Court Can Conciude That The Punitive Damages

Assessed Against Petitioner Violated Due Process.

In Pacific Mutual Life Ins. Co. v. Haslip, 111 S. Ct. 1032,

1041 (1991), this Court reaffirmed the longstanding prin-

ciple that punitive damages are a part of traditional state

tort law. See also Silkwood v. Kerr-McGee Corp., 464 U.S.

238, 255 (1984). OCF recognizes this principle and indeed,

except for its discussion of Haslip and footnote 4, the

entire Petition discusses West Virginia case law.

These cases were tried in West Virginia courts that

applied West Virginia law. The West Virginia Supreme

Court recently examined its own law regarding punitive

damages in Fleming Landfill v. Garnes, 186 W. Va. 656, 413

S.E.2d 897 (1991), on remand from Fleming Landfill v.

Garnes, 111 S. Ct. 2882 (1991),3 and in Davis v. Celotex

Corp., 420 S.E.2d 557 (W. Va. 1992), an asbestos case tried

before one of the judges who presided below. Under the

pertinent principles expressed in those cases, OCF has

failed to present any basis upon which this Court can

conclude that the punitive damages assessed against it by

the juries in these cases violates due process.

In Garnes, the West Virginia Supreme Court advanced

the three general criteria for awards of punitive damages

expressed by this Court in Haslip:

(1) a reasonable constraint on the jury’s discre-

tion; (2) a meaningful and adequate review of

the award by the trial court using established

procedures; and (3) a meaningful and adequate

review by the appellate court.

Garnes, 413 S.E.2d at 907. All these criteria were satisfied.

3 The only part of previous West Virginia law expressly

overruled in Garnes was the part of Wells v. Smith, 171 W. Va. 97,

297 S.E.2d 872 (1982), that stands for the proposition that a jury

may award punitive damages without finding any compensato-

ries. Garnes, 413 S.E.2d at 908. Contrary to the statement in the

Petition at 29, Garnes did not find the entire system for awarding

punitive damages unconstitutional.

With respect to constraint on the jury’s discretion, the

jury should consider those factors for which it has all of

the information necessary to use those factors properly.

Garnes, 413 S.E.2d at 909. In Garnes, the court reversed an

award of punitive damages because, in sharp contrast to

these cases, the jury awarded substantial punitive dam-

ages, but not compensatory damages.

Here, the only evidence before the jury relevant to

punitive damages was the evidence of OCF’s wrongdo-

ing. The instructions to the jury described the purposes of

punitive damages (to punish and deter) and the standard

of conduct required for an award of punitive damages

(gross fraud, malice, oppression, or wanton, willful or

reckless misconduct or criminal indifference to civil obli-

gations affecting the rights of others). OCF does not

contend in its Petition that the evidence of egregious

conduct was insufficient to submit the issue of punitive

damages to the jury, and indeed other appellate courts

have ruled similar evidence concerning OCF’s wrongdo-

ing sufficient to submit the issue of punitive damages to

the jury. Dunn v. Owens-Corning Fiberglas Corp., 774 F.

Supp. 929 (D.V.I. 1991), aff'd in part and vacated in part sub

nom., Dunn v. HOVIC, 1992 W.L. 228875 (Sept. 18, 1992),

rehearing granted and opinion vacated, 1992 W.L. 274786 (3d

Cir. Oct. 8, 1992); Owens-Corning Fiberglas Corp. v. Watson,

243 Va. 128, 413 S.E.2d 630 (1992).

The charge to the jury did not instruct the jury to

consider other factors, such as the profitability of the

defendant’s conduct and the financial position of the

defendant, for one simple reason: OCF fails to point to

any evidence of these other factors or its request for a

specific charge of other factors.

10

Indeed, the instructions given below were not signifi-

cantly different from the one approved by this Court in

Haslip. The record, far from showing that the jury “ran

wild,” demonstrates that the juries were capable of

accommodating the parties’ interest in rational decision-

making and the state’s interest in meaningful, individu-

alized assessment. The compensatory damages ranged

widely, obviously reflecting the varying degrees of injury

suffered by each plaintiff, and the punitive damages dif-

ferentiated between the egregiousness of OCF’s conduct -

which the evidence showed considered but failed to place

warnings on products of which it had actual knowledge

of the hazards - and that of the other defendant who

went to verdict.

The fact that the two juries awarded punitive dam-

ages in different amounts is hardly a violation of due

process. As recognized by Justice Kennedy: “Jury deter-

mination of punitive damages has such long and princi-

pled recognition as a central part of our system that no

further evidence of its essential fairness or rationality

ought to be deemed necessary.” Haslip, 111 S. Ct. at 1055.

Some inconsistency of jury results can be expected. How-

ever, nonuniformity cannot be equated with constitu-

tional infirmity. “On the contrary, it is the jury’s function

to make the difficult and uniquely human judgments that

defy codification and that ‘buil{d] discretion, equity, and

flexibility into a legal system.’” Id. (Kennedy, J., concur-

ring) (quoting McClesky v. Kemp, 481 U.S. 279, 311, reh’g

denied, 482 U.S. 920 (1987)). Indeed, this issue was

recently raised in a Petition for a Writ of Certiorari,

properly denied by this Court in Owens-Illinois, Inc. v.

Roby, 61 U.S.L.W. 3334 (U.S. Nov. 2, 1992) (No. 92-423).

11

In short, there is nothing patently “wild” about a

total of $4,380,000 in punitive damages awarded to 36

plaintiffs when the aggregate compensatory damages

were $1,846,040, resulting in less than a 2.4:1 ratio. In

Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.

1991), cert. denied sub nom., Celotex Corp. v. Glasscock, 112

S. Ct. 1778 (1992), this Court denied review of a $6.1

million punitive damage award to eleven (11) asbestos

plaintiffs, who were awarded total compensatory dam-

ages of $2,590,000. In other contexts, this Court has

upheld ratios of punitive damages to compensatories

more disparate than the ratio presented here. See, e.g.,

Haslip (punitive damages more than four times the com-

pensatory damages); Browning-Ferris Indus. of Vermont,

Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) (punitive

damages over one hundred times the compensatory dam-

ages); Silkwood (punitive damages twenty times the com-

pensatory damages).

OCF’s failure to present relevant evidence and to

preserve the issues it now raises in its Objections and

Exceptions to Judge’s Charge to Jury, cannot be rectified

in this Court. See Simpson v. Pittsburgh Corning Corp., 901

F.2d 277, 280-82 (2d Cir.), cert. dismissed sub nom. Pitts-

burgh Corning Corp. v. Simpson, 111 S. Ct. 27 (1990); Dunn

v. Owens-Corning Fiberglas, 774 F. Supp. at 946. This Court

has properly refused to entertain objections to punitive

damage awards based on vague appeals to constitutional

principles. See, e.g., Bankers Life and Casualty Co. v.

Crenshaw, 486 U.S. 71 (1988).

12

The Petition fails to specify the evidence relevant to

the constitutional issues that was excluded or the erro-

neous ruling on its exception to the constitutionality of

the instruction, contrary to Supreme Court Rule 14.1(h):

If review of a judgment of a state court is

sought, the statement of the case shall also spec-

ify the stage in the proceedings, both in the

court of first instance and in the appellate

courts, at which the federal questions sought to

be reviewed were raised; the method or manner

of raising them and the way in which they were

passed upon by those courts; and such pertinent

quotation of specific portions of the record or

summary thereof, with specific reference to the

places in the record where the matter appears

(e.g., ruling on exception, portion of court’s

charge and exception thereto, assignment of

errors) as will show that the federal question

was timely and properly raised so as to give this

Court jurisdiction to review the judgment ona

writ of certiorari. When the portions of the

record relied upon under this subparagraph are

voluminous, they shall be included in the

appendix referred to in subparagraph .1(k) of

this Rule.

OCF’s Statement of the Case fails to specify how it raised

the constitutional issues at trial for a simple reason: it did

not do so. Thus, this Court should deny the Petition

under Rule 14.5.

OCF has also failed to show that the post-trial review

by the trial courts offended due process. OCF omits from

its discussion of post-trial review any mention of a hear-

ing at which the courts rendered a decision from the

13

bench on OCF’s post-trial motions. The reason the deci-

sion on the record appears “cursory” is simple: a court

reporter was present at the hearing, but OCF never

ordered the transcript and has failed to include it in the

record before this Court.

With respect to appellate review, OCF’s argument

boils down to a single complaint: the West Virginia

Supreme Court did not render a written decision on its

Petition for Appeal to that court. OCF itself recognizes

the reason: the West Virginia Supreme Court, like this

Court, does not accept an appeal if the alleged error was

not preserved below. (Petition at 36 [citing Pote v. Jarrell,

186 W. Va. 369, 412 S.E. 2d 770, 777 (1991)}).4

4 This Court has repeatedly recognized in the crimina! con-

text that due process does not establish an absolute right to an

appeal in the state court system. See, e.g., United States v. Mac-

Collom, 426 U.S. 317, 323 (1976) (citing Griffin v. Illinois, 351 U.S.

12, 18 (1956)). See also Pennsylvania v. Finley, 481 U.S. 551, 557-58

(1987); Billotti v. Legursky, 975 F.2d 113 (4th Cir. 1992) (reviewing

West Virginia appellate procedures). Certainly, due process is

not implicated in the civil context when the complaining party

had every opportunity to present relevant evidence and to build

and preserve a record, and in fact does receive review by the

appellate court, which simply found no basis to render a written

decision setting forth its reasons for refusing OCF’s petition.

OCF cites a number of cases for the proposition that “the

demands of due process require that the reasons for a decision

be explained in certain circumstances.” (Petition at 40 n.6). Cer-

tainly, if there is no right to appeal, there is no right to a written

decision on the merits by the appellate court. Further, the cases

cited by OCF in fact hold that:

there is no federal requirement that a state trial judge

explain his reasons for acquitting a defendant in a

state criminal trial)... _

14

As stated in Garnes, a petition for review must

address each and every factor to be given to the jury

“with particularity, summarizing the evidence presented

to the jury on the subject or to the trial court at the post-

judgment review stage.” Syl. Pt. 5, Garnes, 413 S.E.2d at

900. OCF’s petition could not have summarized evidence

it did not present, and that court wisely declined to

review a case submitted on an inadequate record. The

fact that OCF’s petition to the West Virginia Supreme

Court “addressed some of the factors made relevant by

Haslip (and later by Garnes)” (Petition at 37) is no substi-

tute for introducing relevant evidence at the trial court

level.>

... Federal judges have no general supervisory power

over State trial judges; ....

Harris v. Rivera, 454 U.S. 339, 344-45 (1981). OCF cites two cases

that require corrections officials to provide written explanations

for their decisionmaking. Wolff v. McDonnell, 418 U.S. 539,

564-65 (1974) (written record of disciplinary action by correc-

tions officials required to aid scrutiny by state officials, the

public and the courts); Morrissey v. Brewer, 408 U.S. 471, 489

(1972) (written statement by factfinders as to reasons for revok-

ing parole). These cases are inapplicable to the instant cases

where a complete record of the trial is available and OCF had

the opportunity to create the record and submit any part of it for

the consideration of the appellate court. OCF received all the

process to which it was due.

> Further, even if the record adequately preserved the issue,

OCF misstates the holding of Pote v. Jarrell, which explicitly does

not require that every petition concerning punitive damages be

accepted:

Moreover, even where a punitive damage issue is

adequately preserved, we may conclude in our

review of the petition that the error was harmless and

refuse the petition. We want to emphasize that merely

a

15

By OCF’s own admission, it forewent the opportunity

to present at trial any relevant evidence of the numbers of

asbestos cases pending against it and any financial

impact, but awaited its petition for appeal to the West

Virginia Supreme Court and the Petition to this Court to

present “data” (which is not even in the form of admissi-

ble evidence) that it wished the jury to consider in mitiga-

tion of punitive damages. An appellate court is not the

proper forum for resolving factual disputes that could

have been, but were not presented to the fact finder.

The West Virginia Supreme Court has properly

rejected the role of a super fact finding body. In Davis v.

Celotex, supra, an appeal to the West Virginia Supreme

Court from an award of punitive damages against an

asbestos defendant, the court concluded:

In sum, we hold that in cases tried before Garnes

in which punitive damages were awarded, we

will not set aside such awards if there is a fac-

tual basis for the punitive damages, if the puni-

tive damages bear a reasonable relationship to

the compensatory damages, and if the parties’

main assignment of error is that the trial court’s

instruction did not contain all of the factors

enunciated in Garnes.

Davis, 420 S.E.2d at 567.

This Court should do likewise. The evidence of

OCF’s egregious conduct was substantial, and OCF had

because error relating to a punitive damage award is

asserted in the petition, that appeal will not automat-

ically be granted on the punitive damage point alone.

Pote v. Jarrell, 412 S.E.2d at 777.

16

the opportunity, which it declined, to present all relevant

evidence, to object to the jury instructions and to offer

specific instructions to address any purported constitu-

tional infirmity. The trial courts entertained motions and

held a post-trial hearing on OCF’s objections to the puni-

tive damages award, but OCF failed to order a transcript

of the hearing which specifically addressed OCF’s con-

tentions. Given the record, OCF presented no basis for

the West Virginia Supreme Court to review the punitive

damage awards. OCF, like other asbestos defendants who

have petitioned this Court, had all the process to which it

was due.

II. The Petition Presents No Basis Upon Which This

Court Can Conclude That Multiple Punitive Dam-

age Awards Exceed The Amount Necessary For

Deterrence and Punishment.

OCF adopts the argument that multiple punitive

damages violate due process as set forth in Owens-Illi-

nois’ Petition for A Writ of Certiorari in Owens-Illinois,

Inc. v. Bolyard, 61 U.S.L.W. 3352 (U.S. Nov. 9, 1992) (No.

92-360). This Court denied Owens-lllinois’ Petition and

should do so here for the following reasons.

First, OCF presented no evidence to the trial courts

that it was punished enough, and should not be permit-

ted to do so here. OCF’s assertion that it “informed the

[West Virginia] Supreme Court of Appeals that 12 juries

had returned punitive damages verdicts against OCF”

does not substitute for the introduction of admissible

evidence to the fact finder. Even if that information were

true, it does not establish that OCF actually paid punitive

17

damages, or illustrate the financial implications of the

information. OCF cannot expect this Court to simply

accept as fact information presented out of context that

has not been subjected to the rigors of cross-examination.

Further, the record is devoid of any indication that

the jury had evidence of the full extent of OCF’s wrongful

conduct in failing to warn all users of the dangers of its

asbestos products, and the jury was not instructed to

award punitive damages as appropriate punishment for

the totality of OCF’s conduct. There was no showing that

the wrongdoing sought to be punished in these cases is

the same misconduct involved in other cases. In fact,

there was no evidence at all relevant to multiple punitive

damages. Simpson, 901 F.2d at 281. Without a full airing of

these issues at the trial court level, there is nothing for

this Court to review.

Second, punitive damage awards are governed by

state law. The West Virginia Supreme Court has upheld

the propriety of multiple punitive damages under pre-

cisely the same facts as are presented in this case. Davis v.

Celotex, supra.

Third, in the criminal context, West Virginia has rec-

ognized that when a single act results in multiple deaths,

Article III, Section 5 of the West Virginia Constitution

permits multiple punishments, and criminal defendants

may receive as many sentences as there were deaths. State

v. Fortner, 182 W. Va. 345, 387 S.E.2d 812, 826 (1989); State

ex rel. Lehman v. Strickler, 174 W. Va. 809, 329 S.E.2d 882

(1985); State v. Myers, 171 W. Va. 277, 298 S.E.2d 813

(1982). Certainly in the civil context, when a manufac-

turer’s product causes death and injury to many people,

18

multiple punitive damage awards are proper. See also

Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal,

Inc., 492 U.S. at 259-60 (Excessive Fines Clause of the

Eighth Amendment does not apply to punitive damages

awarded in civil cases between private parties); United

States v. Halper, 490 U.S. 435, 450-51 (1989) (Double Jeop-

ardy Clause of Fifth Amendment is not triggered by civil

litigation between private parties).

Fourth, this argument repeatedly has been raised in

asbestos cases appealed to this Court, including an

appeal by another defendant in these cases. See Keene v.

Adams, supra. In every case, this Court properly declined

review. See, e.g., Glasscock v. Armstrong Cork Co., supra;

King v. Armstrong World Indus., Inc., 906 F.2d 1022 (5th Cir.

1990), cert. denied sub nom., Celotex Corp. v. King, 111 S. Ct.

2236 (1991); Simpson v. Pittsburgh Corning Corp., supra;

Johnson v. Cebotex Corp., 899 F.2d 1281 (2d Cir.), cert. denied

sub nom. Celotex Corp. v. Johnson, 111 S. Ct. 297 (1990);

Jackson v. Johns-Manville Sales Corp., 781 F.2d 394 (5th

Cir.), cert. denied, 478 U.S. 1022 (1986).

Fifth, to adopt OCF’s position as a matter of law

without a full record raises disturbing practical implica-

tions. If only a single punitive damage award is available

against a manufacturer who mass produces and markets

unsafe products, manufacturers could simply factor the

cost of a single punitive damage award into the cost of

doing business, completely eliminating the deterrent

effect of punitive damages. See Leonen v. Johns-Manville

Corp., 717 F. Supp. 272, 283-84 (D.N.J. 1989).

Thus, to reverse the punitive damages in this case

would require this Court to become a fact finding body

19

and to completely undermine the purposes of punitive

damages under state law.

CONCLUSION

Having failed to avail itself of the opportunity at trial

to present relevant, admissible evidence in mitigation of

punitive damages, OCF now seeks to transform this

Court into a fact finding body to consider for the first

time OCF’s “information.” The evidence of OCF’s wrong-

doing was overwhelming, and the punitive damages

awarded against OCF comport with applicable state law.

OCF presents no basis for review of punitive damages,

and this Court must deny OCF’s Petition for a Writ of

Certiorari.

Respectfully submitted,

Tyse A. Brett, Esquire

Counsel of Record

THEODORE GOLDBERG, EsQuIRE

HENDERSON & Govpserc, P.C.

1030 Fifth Avenue

Pittsburgh, PA 15219

(412) 471-3980

Scott S. SEGAL, Esquire

Seca & Davis

810 Kanawha Blvd., East

Charleston, WV 25301

(304) 344-9100

Attorneys for Respondents

Dated: November 20, 1992

App. 1

RULES OF APPELLATE PROCEDURE

WEST VIRGINIA SUPREME COURT OF APPEALS

Rule 3. Petition for Appeal. (a) Time for Petition. No

petition shall be presented for an appeal from, or a writ

of supersedeas to, any judgment, decree or order, which

shall have been rendered more than four months before

such petition is filed in the office of the clerk of the circuit

court where the judgment, decree or order being

appealed was entered, whether the State be a party

thereto or not; provided, that the judge of the circuit

court may for good cause shown, by order entered of

record prior to the expiration of such period of four

months, extend and re-extend such period, not to exceed

a total extension of two months, if a request for the

transcript was made by the party seeking an appeal or

supersedeas within thirty days of the entry of such judg-

ment, decree or order. In appeals from administrative

agencies, the petition for appeai shall be filed within the

applicable time provided by the statute.

(b) Notice for Criminal Appeal. No petition from a

criminal case shall be presented unless a notice of intent

to appeal shall have been filed with the clerk of the court

in which the judgment or order was entered within thirty

days from the entry of such judgment or order. The notice

of intent to appeal shall concisely state the grounds for

appeal.

(c) Form of Petition. The petition for appeal and note

of argument under prior practice shall be integrated into

one document called the petition. A petition for an appeal

shall state the following in the order indicated:

App. 2

1. The kind of proceeding and nature of the ruling

in the lower tribunal.

2. A statement of facts of the case.

3. The assignments of error relied upon on appeal

and the manner in which they were decided in

the lower tribunal.

4. Points and authorities relied upon, a discussion

of law, and the relief prayed for.

(d) Joint or Consolidated Appeals. If two or more per-

sons are entitled to appeal from a judgment or order of a

lower tribunal and their interests are such that joinder

may properly be made, they may join in petitioning for

an appeal, and they may thereafter proceed on appeal as

a single appellant. Appeals may be consolidated by order

of the Supreme Court upon its own motion, or upon

motion of a party, or by stipulation of the parties to the

several appeals.

(e) Service of Petition. The petition for appeal shall

be served in accordance with Rule 15.

(f) Response to Petition. When the appeal is from a

judgment, order or decree of a circuit court, the respon-

dent may file seven copies of a response with the Clerk of

the Supreme Court within thirty days after the filing of

the petition for appeal in the office of the clerk of the

circuit court. When the appeal is from another tribunal,

the respondent may file seven copies of a response with

the Clerk of the Supreme Court within thirty days after

the filing of the petition for appeal with the Clerk of the

Supreme Court. (As amended by order entered Novem-

ber 29, 1989, effective January 1, 1990, by order entered

App. 3

June 26, 1990, effective July 1, 1990, and by order entered

December 13, 1990, effective March 1, 1991.)

Rule 4. Presentation of Petition. (a) Filing with Clerk.

When the appeal is from an order of the circuit court,

eight copies of the petition for appeal shall be filed in the

office of the clerk of the circuit court where the judgment,

decree or order being appealed was entered. The circuit

clerk shall note on each copy the date on which the

petition for appeal was filed. There shall be attached to

the original petition a memorandum of all parties who

have appeared in the action from which the appeal is

sought, together with the names and addresses of their

counsel of record, if any.

(b) Transmission to the Supreme Court. The circuit

clerk shall retain one copy of the petition and, within

twenty days from deposit of money or bond for costs

under subparagraph (d), shall transmit seven copies of

the petition, along with the trial court record as desig-

nated in paragraph (c), to the Clerk of the Supreme Court

by United States certified mail.

(c) Record on Petition. The appellant shall designate

by itemization to the clerk of the circuit court such plead-

ings, orders and exhibits to enable the Supreme Court to

decide the matters arising in the petition:

(i) In lieu of filing all or part of the transcript of

testimony the petitioner may file under Rule 4A, in

which event he may rely on the facts stated in his

petition, or

App. 4

(ii) If the petitioner desires he may cause to be pre-

pared, pursuant to the provisions of Rule 80 of the

West Virginia Rules of Civil Procedure, a transcript

of such part of the proceedings not already on file

as he deems necessary for inclusion in the record.

The circuit clerk, before transmitting the record to the

Supreme Court, shall arrange the papers, as nearly as

possible, in chronological order of filing, shall number

the pages, shall make and certify copies of all orders

entered in the case which are not in the files, and shall

prepare a table of contents or index.

(d) Bond for Costs. Before such petition and record

are transmitted, the petitioner shall deposit with the clerk

of the circuit court sufficient money, or a bond condi-

tioned to pay the same, in a penalty and with sureties to

be fixed and approved by such clerk, to pay: (1) the

expenses of preparing and indexing the record; (2) fees

for filing the petition and certifying necessary copies of

orders; (3) costs of transmission and return of the record;

and (4) costs of the making of the transcript. The clerk

shall endorse on the petition that such deposit has been

made or such bond fixed. (As amended by order entered

November 29, 1989, effective January 1, 1990.)

Rule 4A. Presentation of Petition Without Tran-

script of Testimony. (a) Purpose. In order to provide an

inexpensive and expeditious method of appeal, a peti-

tioner may file his petition without the transcript of testi-

mony taken in the lower court.

App. 5

(b) Filing with Circuit Court. Eight copies of the peti-

tion shall be filed in the office of the clerk of the circuit

where the judgment or order being appealed was entered

within sixty days from the date of entry of the judgment

of order. Two additional copies of the petition shall be

served upon each party to the action being appealed, as

provided in Rule 15, and such parties shall have thirty

days to file a reply petition with the clerk of the circuit

court. The respondent shall not be entitled to an oral

argument under rule 5.

(c) Record on Petition. The petitioner shall designate

by itemization to the clerk of the circuit court so much of

the pleadings, orders and exhibits in the case as will

enable the Supreme Court to decide the matters arising in

the petition. In lieu of filing all or part of the transcript of

testimony, the petitioner shall set out in the petition a

statement of all facts pertinent to the issues he raises. The

petition shall include a certificate by the petitioner’s

attorney that the facts alleged are faithfully represented

and that they are accurately presented to the best of his

ability. The use of the abbreviated procedure, set forth in

this Rule 4A, places the highest possible fiduciary duty

upon a lawyer with regard to the court and intentional

misrepresentation of any sort is grounds for disciplinary

action.

(d) Transmission to the Supreme Court. The circuit

clerk shall retain in his office one copy of the petition. He

shall, at the end of thirty days from the date the petition

was filed under paragraph (b), supra, or after respondent

has filed a reply petition, whichever occurs first, transmit

by certified mail to the Clerk of the Supreme Court seven

App. 6

copies of the petition. The circuit clerk, before transmit-

ting the record to the Supreme Court, shall arrange the

papers, as nearly as possible, in chronological order of

filing, shall number the pages, shall make and certify

copies of all orders entered in the case which are not in

the files, and shall prepare a table of contents or index.

(e) Bond for Costs. Before such petition and record

are transmitted to the Supreme Court, the petitioner shall

deposit with the clerk of the circuit court sufficient

money, or a bond conditioned to pay the same, in a

penalty and with sureties to be fixed and approved by

such clerk, to pay: (1) the expenses of preparing and

indexing the record; (2) fees for filing the petition and

certifying necessary copies of orders; (3) costs of trans-

mission and return of the record. The clerk shall endorse

on the petition that such deposit has been made or such

bond filed.

Rule 5. Hearing on Petition. (a) Time for Hearing.

Within thirty days from the date of receipt of the petition

and record by the Clerk of the Supreme Court, counsel

may request oral presentation on the petition on any

regularly scheduled motion day thereafter. Such request

shall be made to the Clerk of the Supreme Court in

writing or by telephone. Oral presentation will be heard

in the order in which such requests were made. Oral

presentation will not be heard, except upon motion for

good cause shown, prior to expiration of the period

allowed for filing a response as provided in Rule 3(f).

App. 7

(b) Oral Presentation. Oral presentation shall be lim-

ited to ten minutes, unless additional time is granted by

the Court.

(c) Waiver of Oral Presentation. At any time after the

transmission of the petition and record to the Clerk of the

Supreme Court in accordance with Rule 4A(d), counsel

may inform the Clerk in writing that an oral presentation

is not desired, in which case the petition will be consid-

ered by the Court in chambers. (As amended by order

entered December 13, 1990, effective March 1, 1991.)

+ * *

Rule 7. Rejection or Allowance of Appeal. (a)

Rejection. If the petition for appeal is rejected by the

Supreme Court on the ground that the judgment or order

is plainly right, no other petition for appeal from that

judgment or order shall be permitted. If the petition for

appeal is rejected on any other ground, or if no ground be

cited in the rejection, the petitioner may renew the peti-

tion as many times as he desires during the period pre-

scribed by law for presentation of petitions.

(b) Renewal of Petition. A petitioner desiring to

renew a petition may notify the Clerk of the Supreme

Court of his intention in writing within thirty days after

the entry of the order denying his application. In such

case, the Clerk shall retain the petition and record in the

Supreme Court, the petition may be reheard in accor-

dance with Rule 5, and an amended petition or supple-

mental argument may be filed.

App. 8

If the Clerk of the Supreme Court receives no timely

notice of the petitioner’s intention to renew, he shall

return the record to the circuit clerk, who shall repay the

petitioner any money deposited under Rule 4(d) or Rule

4A(e), in excess of fees and expenses.

(c) Allowance. If the petition for appeal is granted:

(1) The Clerk of the Supreme Court shall

docket the same and immediately send a copy of

the order granting the appeal to the petitioner’s

counsel, or, if there is no counsel of record, to

the petitioner, and to the clerk of the circuit

court, who shall retain the same in his records.

(2) The Clerk of the Supreme Court shall

forthwith return the record to the clerk of the

circuit court for preparation of the record of the

case for appeal in accordance with Rules 8 and 9.

(3) The Clerk of the Supreme Court shall

then issue summons against all parties appear-

ing of record, other than the petitioner, that they

may be heard, and shall also issue any super-

sedeas which may have been awarded. The

Clerk of the Supreme Court shall serve the sum-

mons upon the parties by mailing the same to

the counsel of record for each party, or if there is

no counsel of record, to the party at his last

known address. Service shall be complete upon

mailing. The Clerk of the Supreme Court shall

note upon the docket the names of the parties to

whom the summonses were mailed, with the

date of mailing.

(4) The Court may grant a supersedeas or

modify the conditions thereof, in accordance

with rule 6.

App. 9

IN THE CIRCUIT COURT OF

MONONGALIA COUNTY, WEST VIRGINIA

LEONARD ADAMS,

GARLEN BURTON,

GEORGE & BARBARA

CAMPBELL, LESLIE

CARR, JOHN &

CAROLYN CHAPMAN,

ARVILLE DALTON,

JAMES DARRAH, PAUL

& BONNIE DUNN,

TERRY ENGLAND,

WILLIAM GABBERT,

GEORGE HOSCHAR,

EVERETT JOHNSON,

JAMES & LOIS KIRK,

WILLIAM KITTLE,

FOSTER LIPSCOMB,

NELSON LOTT, G.V.

MEHALIC, JERYL ROOT,

STANLEY ROWE, JOSEPH

SBERNA, AND JOSEPH

SHILOT,

Plaintiffs

V.

KEENE CORPORATION

and OWENS-CORNING

FIBERGLAS

CORPORATION,

Defendants

CIVIL ACTION NOS.

86-C- 763, 764, 783, 830,

831, 832 & 87-C-7

ASBESTOS CASES

DEFENDANT OWENS-

CORNING FIBERGLAS

CORPORATION’S

OBJECTIONS AND

EXCEPTIONS TO

JUDGE’S CHARGE TO

JURY

Filed On Behalf of:

Owens-Corning Fiberglas

Corporation, Defendant

Counsel of Record

For This Party:

Patrick R. Riley, Esquire

Pa. I.D. #16511

Thomas J. Michael,

Esquire

Pa. I.D. #30768

Fredric E. Orlansky,

Esquire

Pa. I.D. #26452

RILEY & DeFALICE, P.C.

Four Gateway Center

Suite 2150

Pittsburgh, PA 15222

(412) 261-8300

Firm No. 854

App. 10

DEFENDANT OWENS-CORNING FIBERGLAS

CORPORATION’S OBJECTIONS AND EXCEPTIONS

TO JUDGE’S CHARGE TO JURY

AND NOW comes Defendant, Owens-Corning

Fiberglas Corporation, by its attorneys Riley & DeFalice,

P.C. and files its Objections and Exceptions to Judge’s

Charge to Jury, as follows:

1. The Honorable Court failed to charge that it was

a jury question as to whether a Defendant’s efforts to

warn of a product’s alleged danger were adequate.

2. The Honorable Court failed to charge that Plain-

tiffs’ damages could be reduced or eliminated as a result

of their alleged injuries being caused in whole or in part

by smoking or causes other than asbestos related injuries.

3. The Court incorrectly charged that the issue of

product defect was decided as a matter of law against this

Defendant (Jury Charge; page 9, line 19 to page 10, line

1).

4. The Court incorrectly charged that the Plaintiffs

could not be charged with contributory negligence or

comparative fault (Jury Charge; page 10, line 1 to line 6)

5. The Court incorrectly charged that all acts of

negligence, acts which were willful and wanton or omis-

sions to act done by officers, agents or employees of a

corporation were deemed to be the acts of the corporation

(Jury Charge; page 15, line 19 to page 16, line 1).

6. The Court’s instruction concerning the acts or

failures to act by corporate officers, agents or employees

was unfairly prejudicial to this Defendant, since it com-

bined principles of compensatory and punitive liability,

App. 11

such that the jury was confused as to whether it could

award punitive damages based on alleged conduct which

was merely negligent in nature (Jury Charge; page 15,

line 19 to page 16, line 1).

7. The Court erroneously instructed on the issue of

punitive damages. (Jury Charge; page 13, line 7 to page

14, line 3)

DISCUSSION

I. FAILURE TO CHARGE ON ISSUE OF ADEQUACY

OF WARNING

This Honorable Court failed to charge the jury con-

cerning warnings issued by defendant Owens-Corning

Fiberglas Corporation (hereinafter “OCF” or “Owens

Corning”). The West Virginia Supreme Court of Appeals

stated in the case of Morningstar v. Black & Decker Mfg.

Co., 162 W.Va. 857, 253 S.E.2d 666, 682-683 (1979), that

“product unsafeness is to be tested by what the reason-

ably prudent manufacturer would accomplish in regard

to the safety of the product having in mind the general

state of the art of the manufacturing process, including

design, labels, and warnings, as it relates to the economic

costs, at the time the product was made.” After quoting

this language from Morningstar, the Court in Ilosky v.

Michelin Tire Corp; 307 S.E.2d 603, 611 (W.Va. 1983), con-

cluded that “the determination of whether a defendant's

efforts to warn of a product’s dangers are adequate is a

jury question.”

In addition, the placement of a warning on packages

will impact the defendant's potential liability for punitive

App. 12

damages. In Ilosky, the Supreme Court of Appeals ruled

that the trial court had correctly struck the plaintiff’s

claim for punitive damages because the evidence had

shown that Michelin took steps to warn the public con-

cerning the hazard claimed. The warnings consisted of

warnings and recommendations distributed to consumers

and dealers. The Court reasoned that even though the

warnings may have been inadequate to fully warn, the

act itself indicates some effort by the manufacturer. Such

an effort precluded a finding of willful, wanton or mali-

cious conduct.

During the course of the trial, evidence was pre-

sented showing warnings by Owens-Corning. The

Court's failure to instruct concerning warnings was there-

fore erroneous. Given the significance of this issue, the

failure to instruct was not harmless error.

II. FAILURE TO CHARGE ON SMOKING OR OTHER

CAUSES

During the course of the trial, evidence was pre-

sented showing the extensive smoking histories of most

of the Plaintiffs. In addition, evidence was presented by

medical experts concerning the nexus of smoking and

lung disease. In addition, as to some Plaintiffs, medical

evidence was presented concerning the presence of medi-

cal conditions which could adversely impact the Plain-

tiff’s breathing. In spite of this evidence, the Court failed

to instruct the jury that in making its determination, it

could take into account these other factors.

Comparative fault or negligence is available as to a

defense in a strict liability products liability action, so

App. 13

long as the complained of conduct is not a failure to

discover a defect or to guard against it. Star Furniture Co.

v. Pulaski Furniture Co., 297 S.E.2d 854, 863 (W.Va. 1982).

The cited case also stands for the proposition that a

plaintiff can recover in strict liability only for those inju-

ries actually caused by the product defect (Id. 297 S.E.2d

at 859)

Clearly, the Court’s failure to instruct concerning

smoking and/or other health problems was erroneous.

Evidence supporting these defenses was introduced by

the defendants and created a jury question. Even under

strict liability, the product defect must be shown to be the

proximate cause of the plaintiff’s injuries. Morningstar,

253 S.E.2d at 680. Strict liability is not absolute liability.

Therefore, the Court should have instructed concerning

other possible causes for Plaintiffs’ alleged injuries.

Ill. DIRECTED VERDICT ON PRODUCT DEFECT

The Court ruled as a matter of law that OCF’s

asbestos containing products were defective. In its

instruction, the Court correctly stated that the question of

product defect is usually one for the jury’s determination.

See generally, Morningstar; Ilosky.

The standard for directing a verdict on liability is

found in Syllabus Points 4 and 5 of Sommerville v. Pennsyl-

vania Railroad Co., 151 W.Va. 709, 155 S.E.2d 865 (1967)

wherein the Supreme Court of Appeals stated:

“4. When the material facts are undisputed

and reasonable men can draw only one

conclusion from them, the question of neg-

ligence is a question of law for the Court.

App. 14

“5. Where the evidence given on behalf of the

defendant is clearly insufficient to support

a verdict for him so that such verdict, if

returned by a jury, must be set aside, and

the evidence of the plaintiff is clear and

convincing, it is the duty of the trial court,

when so requested, to direct a verdict for

plaintiff.”

This standard was recently approved and applied in

the case of King v. Kayak Manufacturing Corporation, 387

S.E.2d 511 (W.Va. 1989). In King, a diver brought a prod-

uct liability suit against a swimming pool manufacturer.

Plaintiff became quadriplegic when he dove into one of

Kayak’s above-ground pools. The Supreme Court of

Appeals identified the central issue of the case as being

the trial court’s finding that plaintiff as a matter of law

was entitled to a directed verdict, in spite of contrary

evidence of contributory negligence and assumption of

the risk (Id. 387 S.E.2d at 520).

The Supreme Court of Appeals reversed the lower

court’s directed verdict, noting that several material fac-

tual disputes existed. Evidence adduced by defendant

showed that in addition to knowing the depth of the

pool, plaintiff had elected to dive into the pool with his

arms at his side, rather than overhead. This would result

in a deeper dive in the shallow water. The court deter-

mined that the jury could reasonably have concluded that

Plaintiff had actual knowledge of the risk of serious

injury.

The Court completed its analysis by quoting Syllabus

Point 2 in the case of Ventura v. Winegardner, 357 S.E.2d

764, (W.Va. 1987), which stated:

App. 15

Where [in a trial by jury] there is competent

evidence tending to Support a pertinent theory

in the case, it is the duty of the trial court to give

an instruction presenting such theory when

requested to do so. McAlister v. Weirton Hospital

Co., __ W.Va. __, 312 S.E.2d 738, 744 (1983)

(citation omitted) [in Original] Syl. pt. 2 Bram-

mmer [sic] v. Taylor, __ W.Va. ___, 338 S.E.2d 207

(1985).

The reasoning of the King case would appear to be

applicable in the instant action. The Court here sua sponte

directed a verdict on product defect following presenta-

tion of defendant’s evidence. OCF had presented testi-

mony showing state of the art consisting of the following

witnesses: Robert Peele; W. Keith Morgan, M.D.; Samuel

Schillaci; Jerry Helser; Edward Gensler, M.D.; Willis Haz-

ard; and Gerrit Schepers, M.D. (cross examination).! In

addition, on the issue of product defect OCF’s evidence

included exhibits from Mr. Peele’s ‘sumony. Although

OCF believes that this evidence was sufficient to support

a verdict in its favor, at a minimus (arguendo) it was

competent evidence sufficient to Support a pertinent the-

ory in the case. In order to sustain a request for a jury

instruction concerning product defect, only the minimal

Showing of competent evidence was required. OCF

clearly met that standard. OCF would also note for the

Court that West Virginia juries have rendered verdicts

' OCF believes that it is particularly significant that it

developed significant evidence favorable to its position on

product defect/state of the art through Plaintiffs’ own state of

the art witness, Dr. Schepers. The evidence developed in his

cross-examination should, alone, have required submission of

the product defect issue to the jury.

App. 16

against Plaintiffs based on the same product defect evi-

dence submitted by these Plaintiffs. It is apparent, based

both on the case law and facts that the Court erred in

instructing the Jury that product defect was determined

as a matter of law against OCF.

IV. FAILURE TO INSTRUCT AS TO AVAILABILITY OF

DEFENSES OF CONTRIBUTORY NEGLIGENCE OR

COMPARATIVE FAULT

The Court instructed, as a matter of law, that the

defenses of contributory negligence and comparative

fault were not available to OCF. Based on Star Furniture

and King, discussed previously, the law of West Virginia

is clear that these defenses should be available to defen-

dants involved in a strict liability, products liability case.

Since OCF has discussed this issue previously in this

document, rather than restating its arguments, it incorpo-

rates its previous discussion herein by reference.

V. ACTS OF CORPORATE OFFICERS, AGENTS AND

EMPLOYEES

The Court instructed that all acts or failure to act by

corporate officers, agents or employees (hereinafter

“employees”) are held by law to be the acts of the corpo-

ration. This statement is an incorrect summary of the law

of West Virginia, in that it is overly broad. OCF asserts

that West Virginia law holds that not all acts of employees

may be imputed to the corporation.

For instance, the Supreme Court of Appeals has ruled

that: a corporation is not ordinarily chargeable with the

App. 17

information held by an officer which it was in his interest

to conceal; Lawhead v. Stewart, 122 W.Va. 80, 7 S.E.2d 350,

351 (1940); a false statement of an agent of a corporation

in making a contract does not bind the corporation,

where the act is not within the scope of his authority;

McDonald v. Cole, 46 W. Va. 186, 32 S.E. 1033, 1034 (1899);

the act of officers and agents in making a dedication of

property, without authority from the directors, will not

make valid a dedication unless it is expressly or implic-

itly ratified by the corporation; Hast v. Piedmont & C.R.

Co., 52 W. Va. 396, 44 S.E. 155 (1903); notice to individual

directors of matters not within the scope of their author-

ity is not considered notice to the corporation; Mack

Realty Co. v. Beckley Hardware & Supply Co., 107 W.Va. 290,

148 S.E. 122, 123 (1929).

In West Virginia cases decided by the Fourth Circuit

Court of Appeals, similar results have occurred. The

court has decided that a corporation should not be

required to pay punitive damages unless a showing is

made of the agent’s authority or ratification by the princi-

pal of the alleged wrongs. Great Atlantic and Pacific Tea Co.

v. Lethcoe, 279 F.2d 948 (4th Cir. 1960). See also England v.

American Southern Insurance Company, 380 F.2d i37 (4th

Cir. 1967); Ohio Farmers Indemnity Co v. Charleston Laundry

Co., 183 F.2d 682 (4th Cir. 1956).

These cases consistently stand for the proposition

that the Court’s instruction in this case was overly broad.

Certainly all acts of employees may not be imputed to the

corporation pursuant to West Virginia law. Any act out-

side the scope of authority of the employee may not be

imputed to the corporate principal. By framing the

instruction so broadly, the Court unfairly prejudiced OCF.

App. 18

VI. CONFUSING JURY CHARGE

The instruction discussed in the previous section is

the source of a second objection by OCF. As phrased, the

charge is confusing, in that it combines principles of both

compensatory and punitive damages in one charge. By

speaking of negligent, wanton, willful, and malicious cor-

porate acts within the same sentence, OCF asserts that it

was unfairly prejudiced. The phrasing of the instruction

was such that the jury obviously believed that it could

award punitive damages on the basis of negligent con-

duct only.

In West Virginia, where gross fraud, malice, oppres-

sion, or wanton, willful or ruthless conduct, or criminal

indifference to civil obligations affecting the rights of

others appears, the jury may assess punitive or vindictive

damages, Wells v. Smith, 297 S.E.2d 872 (W.Va. 1982). Cook

v. Hecks Inc., 342 S.E.2d 453, 461 (W.Va. 1986). This stan-

dard is obviously much more strict than that which exists

for a negligence finding. See, Adair v. Huffman, 156 W.Va.

592, 195 S.E.2d 739 (1973) cert. denied 348 U.S. 981 (1955),

rehrg. denied 349 U.S. 924 (1955). Under the Wells stan-

dard, acts amounting to negligence will not support a

finding of punitive damages. See, Ilosky, supra. However,

by placing the negligence and punitive language sequen-

tially in a single sentence, the jury here was misled into

believing that mere negligent acts would support a puni-

tive finding.

Under the law of West Virginia, the court should

refuse to give an instruction which tends to be incomplete

or misleading Koontz v. Long, 384 S.E.2d 837, 842 (W.Va.

App. 19

1989). Such an instruction is erroneous Catlett v. Mac-

Queen, 375 S.E.2d 184 (W.Va. 1988). Cross v. Trapp, 294

S.E.2d 446 (W.Va. 1982). In addition, where an instruction

is susceptible to two constructions, one of which is erro-

neous, and which may, therefore, mislead the jury, it

should not be given. McGlone v. Superior Trucking Co. Inc.,

363 S.E.2d 736, 745 (W.Va. 1987). See also Gilliam v. Yeates,

329 S.E.2d 51, 52 (W.Va. 1985).

In the Koontz case, the Supreme Court of Appeals

was faced with a jury instruction in a case involving

ownership of funds in a decedent’s certificates of deposit.

The issues were whether the evidence was sufficient to

support the conclusion that a fiduciary relationship ex-

isted between a niece and one holder and whether the

holders intended to make a bona fide gift of the funds to

the niece. In rejecting the proposed instruction of appel-

lant, the Court stated:

As already discussed, under the law of West

Virginia, fraud, mistake, or certain other inequi-

table circumstances, including the mere exis-

tence of a fiduciary relationship between the

joint parties on an account, may overcome the

presumption of a gift in the registration of the

account. The existence of a fiduciary relation-

ship is not necessarily a circumstance equal to

or in the nature of fraud or mistake. In that the

appeallant’s [sic] Instruction No. 8 failed to

include the existence of a fiduciary relationship

as a specific ground which might obviate the

presumption of a gift, and in that it suggested

that before such a relationship could be consid-

ered as a factor obviating the presumption of

gift it had to rise to the level of Ordinary fraud

or mistake, as opposed to constructive fraud,

App. 20

this Court believes that his instruction tended to

be an incomplete and misleading statement of

the law. Such an instruction may properly be

refused by a trial court. (Citations omitted) (384

S.E.2d at 842.)

Owens-Corning believes that the present circum-

stances are similar to those found in Koontz. The mislead-

ing aspect in both cases involves the degree of conduct

necessary to meet a legal standard. In both cases, the jury

confusion occurs as a result of the jury’s application of

the wrong legal standard to the facts. Since it is likely that

this jury was misled into believing that it could award

punitive damages based on merely negligent conduct, the

instruction was erroneous.

VII. IMPROPER INSTRUCTION ON PUNITIVE

DAMAGES

Owens-Corning asserts that the jury should not have

been instructed concerning punitive damages, based

upon the evidence submitted to the jury.

Punitive damages are permitted as a means of pun-

ishing a defendant for egregious conduct Wells v. Smith,

supra. The type of conduct which will support an award

of punitive damages has been set forth in the previous

section.

The evidence presented to the jury clearly proved

that in December, 1966, OCF placed warning labels on the

asbestos-containing product identified during the course

of the trial. Having proved that it warned, OCF should

not be liable for punitive damages, based on the Supreme

Court of Appeals’ decision in the Ilosky case.

App. 21

After setting forth the principle that punitive dam-

ages are awardable to punish for willful, wanton and

other aggravated conduct, the Ilosky court went on to

sustain the trial court’s decision to strike the plaintiff's

punitive damage claim, stating:

The trial court correctly struck the appel-

lee’s claim for punitive damages. The evidence

Showed that Michelin had taken steps to warn

the public about mixing radial and conventional

tires. These efforts included placing warnings

and recommendations against such action in lit-

erature distributed to consumers and to individ-

ual dealers who carried Michelin brand tires.

The fact that these warnings may have been

inadequate to fully warn of the hazards of such

use does not obviate the fact that Michelin made

some effort. This case does not involve a situa- .-

tion where the manufacturer or distributor

made no effort to warn about use of the product.

Therefore, the facts do not meet the willfulness,

wantonness, or malice standard. (307 S.E.2d at

619.)

The dictates of Ilosky clearly show that it was

improper for the Court to instruct that punitive damages

were awardable against OCF. The evidence proved that

OCF warned. Under Ilosky, it is not relevant whether the

warning was adequate, for purposes of removing the

alleged product defect arising from a lack or warning.

The act itself was sufficient evidence that OCF’s conduct

did not rise to the level of aggravation necessary to

support such damages. It is apparent that the giving of

App. 22

any instruction that punitive damages could be awarded,

was Clear error based on these facts.?

CONCLUSION

An erroneous instruction is presumed to be prejudi-

cal [sic], unless it appears that the complaining party was

not injured by the giving of the instruction. Instructions

must be based on the evidence. The giving of an erro-

neous instruction will warrant the award of a new trial.

Cato v. Silling, 137 W.Va. 694, 73 S.E.2d 731 (1952). OCF

asserts that the instructions noted (or the failure to give

instructions) was erroneous and prejudical [sic] to OCF

for the reasons stated herein.

RILEY & DEFALICE, P.C.

By: /s/ Patrick R. Riley/by FEO

Patrick R. Riley, Esquire

By: /s/ Thomas J. Michael/by FEO

Thomas J. Michael, Esquire

By: /s/ Fredric E. Orlansky

Fredric E. Orlansky, Esquire

Attorneys For Defendant

Owens-Corning Fiberglas

Corporation

2 OCF incorporates herein by reference the Objections and

Exceptions to the Jury Charge filed by other similarly situated

parties, to the extent they are not inconsistent herewith.