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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 922

## Text

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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

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Saag ce ho
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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1641%3A2. Public record. Not legal advice.