Kirk v. Raymark ( 1995 )


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  •                                                                                                                            Opinions of the United
    1995 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-14-1995
    Kirk v Raymark
    Precedential or Non-Precedential:
    Docket 94-1745
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    Recommended Citation
    "Kirk v Raymark" (1995). 1995 Decisions. Paper 95.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1995/95
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    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    Nos. 94-1745 and 94-1746
    SARAH A. KIRK, Administratrix of
    the Estates of KIRK, Alfred T., Deceased
    and KIRK, Sarah A. in her own right
    v.
    RAYMARK INDUSTRIES, INC.; EAGLE-PICHER INDUSTRIES, INC.;
    KEENE CORPORATION; GARLOCK INC; OWENS-CORNING FIBERGLAS
    CORPORATION; CELOTEX CORP.; GAF CORPORATION;
    OWENS-ILLINOIS GLASS COMPANY
    Owens-Corning Fiberglas
    Corporation,
    Appellant
    Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. No. 88-cv-03736)
    Argued February 14, 1995
    BEFORE:    STAPLETON, GREENBERG and COWEN,
    Circuit Judges
    (Filed   April 14, l995 )
    Joseph M. Greitzer
    Jerry Kristal (argued)
    Greitzer & Locks
    1500 Walnut Street
    20th Floor
    Philadelphia, PA 19102
    Counsel for Appellee
    Sarah A. Kirk, Administratrix of the
    Estates of KIRK, Alfred T., Deceased
    and KIRK, Sarah A. in her own right
    Robert N. Spinelli
    W. Matthew Reber (argued)
    Kelley, Jasons, McGuire & Spinelli
    1617 JFK Blvd.
    Suite 1400
    Philadelphia, PA 19103
    Counsel for Appellant
    Owens-Corning Fiberglas Corporation
    OPINION
    COWEN, Circuit Judge.
    This asbestos-related personal injury action was tried
    to a jury in the United States District Court for the Eastern
    District of Pennsylvania.   The jury returned a verdict in favor
    of the plaintiff in excess of two million dollars.   On
    application by counsel, the district court granted plaintiff
    delay damages in the amount of $ 520,684.   In these consolidated
    appeals, we are called on to determine whether the district court
    abused its discretion by denying defendant's challenge for cause
    of two jurors who allegedly evidenced bias against the defense.
    Additionally, we are called upon to determine whether the
    district court committed an error of law by: (1) allowing
    plaintiff to introduce into evidence the prior testimony of an
    out of court expert witness from an unrelated state court action;
    (2) permitting plaintiff to introduce the interrogatory responses
    of a co-defendant who settled with the plaintiff prior to trial;
    (3) awarding plaintiff delay damages pursuant to Rule 238 of the
    Pennsylvania Rules of Civil Procedure.
    Because we conclude that the district court abused its
    discretion in denying defendant's challenge for cause of two
    jurors during voir dire, we will reverse the judgment of the
    district court and remand for a new trial on the issue of damages
    and liability.1    Since it is likely that the hearsay issues and
    the issue of delay damages may arise again during the new trial,
    we deem it appropriate to offer the district court guidance.     On
    these subjects, we conclude that the district court erred as a
    matter of law in allowing the introduction of hearsay evidence,
    but did not err in ruling that delay damages would be permitted
    when delay was caused by a judicial stay for which the plaintiff
    was not responsible.
    I. Factual and Procedural History
    Alfred Kirk ("decedent"), a retired painter, died on
    July 5, 1988 at the age of 65 from malignant asbestos-induced
    mesothelioma.     Mrs. Sarah Kirk ("Kirk"), suing on behalf of
    herself and her deceased husband's estate, filed this diversity
    action against eight defendants, including Owens-Corning
    Fiberglas Corporation ("Owens-Corning").2    Kirk alleged that her
    1
    . Defendant also argues that the district court abused its
    discretion in denying: (1) defendant a fair opportunity to prove
    the liability of a settled co-defendant by denying defendant's
    request for a continuance to subpoena product identification
    witnesses and (2) defendant's request for a new trial on the
    grounds of excessiveness of the verdict. Because of our decision
    to reverse the judgment of the district court and remand for a
    new trial on the issue of damages and liability, we need not
    address these arguments.
    2
    . Of these eight defendants, four were bankrupt at the time of
    trial. Of the four remaining defendants, Kirk settled with
    husband's mesothelioma was caused by exposure to dust from
    asbestos products during his employment at the New York Shipyard
    in Camden, New Jersey, during the late 1950's and early 1960's.
    By Order dated July 29, 1991, the Judicial Panel on
    Multidistrict Litigation ("MDL") transferred all pending federal
    asbestos personal injury actions to the Eastern District of
    Pennsylvania.   Pursuant to the MDL Panel's Order, all federal
    asbestos cases were stayed until the summer of 1993.
    On December 13, 1993, the trial (which was reverse-
    bifurcated) began with issues of medical causation and damages.
    At the conclusion of this phase of the trial, the jury returned a
    verdict in favor of the Estate of Alfred Kirk for $ 1.2 million
    and in favor of Sarah Kirk for $ 810,000.     The liability phase of
    the trial commenced several days later before the same jury that
    had previously heard the damages phase.     At the conclusion of the
    liability trial, the jury returned a verdict against Owens-
    Corning.   The jury also found that the decedent was not exposed
    to dust emitted by any asbestos-containing product manufactured
    by co-defendant Garlock, Inc. ("Garlock").
    Following the jury verdict, Owens-Corning moved for a
    new trial alleging several trial errors.     This application was
    denied by the district court.   Kirk filed an application for
    (..continued)
    Garlock, Inc., GAF Corporation, and Owens-Illinois prior to
    trial. Kirk also previously filed an asbestos-related lawsuit in
    the Philadelphia Court of Common Pleas against Pittsburgh Corning
    Corporation, H.K. Porter Company, Inc., and Southern Textile
    Corporation. Of these defendants, two were bankrupt and Kirk
    settled with Pittsburgh Corning prior to trial.
    delay damages pursuant to Rule 238 of the Pennsylvania Rules of
    Civil Procedure, which the district court granted in the amount
    of $ 520,684.   Owens-Corning appeals from both the judgment and
    the award of delay damages.
    Owens-Corning argues that the district court made
    several errors at trial which unfairly prejudiced it during the
    damage and liability phases of the trial, and that the district
    court improperly denied its post-verdict motion for a new trial.
    Finally, Owens-Corning claims that delay damages should not have
    been awarded to Kirk, because the delay was caused by the
    plaintiff filing simultaneous federal and state court actions
    and/or caused by the MDL order staying all asbestos cases, and
    was not caused by any bad faith on the part of Owens-Corning.      We
    will address each of these arguments seriatim.
    The district court had jurisdiction to hear this case
    pursuant to 28 U.S.C. § 1332.   Our jurisdiction is premised on 28
    U.S.C. § 1291 as the judgment entered was a final order.
    II.   Challenge for Cause of Jurors
    Owens-Corning argues that the district court erred in
    refusing to strike for cause two prospective jurors (juror # 251
    and juror # 45) who defendant argues revealed considerable
    potential bias against it during voir dire.   We review for abuse
    of discretion a district court's decision regarding a motion to
    dismiss a juror for cause. United States v. Polan, 
    970 F.2d 1280
    ,
    1284 (3d Cir. 1992), cert. denied, __ U.S. __, 
    113 S. Ct. 1367
    (1993) (citing United States v. Salamone, 
    800 F.2d 1216
    , 1226 (3d
    Cir. 1986) (the factual determination by the district court
    whether a juror can serve impartially is entitled to special
    deference when reviewed on appeal)).
    Because the trial judge is in the best position to
    assess the credibility and demeanor of the prospective jurors,
    "district courts have been awarded ample discretion in
    determining how best to conduct the voir dire."   Waldorf v.
    Shuta, 
    3 F.3d 705
    , 710 (3d Cir. 1993) (citing Rosales-Lopez v.
    United States, 
    451 U.S. 182
    , 189, 
    101 S. Ct. 1629
    , 1635 (1991)).
    In determining whether a particular juror should be excused for
    cause, our main concern is "whether the juror holds a particular
    belief or opinion that will `prevent or substantially impair the
    performance of his duties as a juror in accordance with his
    instructions and his oath.'"   
    Salamone, 800 F.2d at 1226
    (citing
    Wainwright v. Witt, 
    469 U.S. 412
    , 424, 
    105 S. Ct. 844
    , 852
    (1985)).   "A juror is impartial if he or she can lay aside any
    previously formed `impression or opinion as to the merits of the
    case' and can `render a verdict based on the evidence presented
    in court.'"   
    Polan, 970 F.2d at 1284
    (citing Irvin v. Dowd, 
    366 U.S. 717
    , 723, 
    81 S. Ct. 1639
    , 1643 (1961)).   However, the
    district court should not rely simply on the jurors' subjective
    assessments of their own impartiality.   See 
    Waldorf, 3 F.3d at 710
    (district court relied too heavily on jurors' assurances of
    impartiality); see also Government of the Virgin Islands v.
    Dowling, 
    814 F.2d 134
    , 139 (3d Cir. 1987) (though a juror swears
    that he could set aside any opinion he might hold and decide the
    case on the evidence, a juror's protestation of impartiality
    should not be credited if other facts of record indicate to the
    contrary).
    Owens-Corning argues that prospective juror # 251
    should have been struck for cause because he worked with
    asbestos-containing products for many years and indicated during
    voir dire that he was leaning in favor of the plaintiff.   Kirk
    argues that this prospective juror was properly placed on the
    jury because when questioned by both the district court and
    counsel whether he could render a fair and impartial verdict, the
    prospective juror responded in the affirmative.
    We are troubled by the fact that a district judge,
    despite assurances of impartiality, allowed a prospective juror
    to serve in a mesothelioma case when the juror's background
    raised serious questions as to his ability to serve impartially.3
    3
    . Relevant portions of the voir dire of prospective juror # 251
    are as follows:
    Juror 251:     Well, two uncles had cancer, they were mechanics.
    Our union did a study on their members. I am a
    mechanic, and it was like 97 percent of them
    tested had some problem with asbestos. I have
    eaten a lot of it over the years brakes, clutches
    up until gets in the air hose, blows it out, you
    spit black dirt for two days.
    . . . .
    Mr. Kristal (counsel for Kirk): Do you think that will affect
    your ability to listen to the
    evidence and be fair to both
    sides in this case?
    Juror 251:     Well I could only try to be fair is all I could
    say. I guess in a way I got to be a little one
    way, I'm probably high on the priority list
    myself. I've been a mechanic since 1957, up until
    when they stopped using it, you know, you took a
    (..continued)
    clutch out of a truck, hit it with the air hose
    and the whole shop is black.
    . . . .
    Mr. Kristal:    If I didn't prove my case, or show that Mr. Kirk
    didn't have asbestos disease or I was unable to
    show Owens-Corning Fiberglas was liable,
    would you be able to return a verdict against my
    client?
    Juror 251:      I wouldn't have any problems at all.
    Mr. Kristal:    [I]f I had proven the case, would you be able to
    find in favor of my client?
    Juror 251:      I might lean the other way because I have been
    there. I know a lot of members who have been down
    that road, you know.
    Mr. Kristal:    Can you put [your past experience with asbestos]
    behind you and decide this case on what you hear
    in the courtroom from the witness stand and follow
    the Court's instructions?
    Juror 251:      I believe I could.
    Mr. Hewitt (counsel for Owens-Corning): Your two uncles had
    cancer?
    Juror 251:      Yes.
    Mr. Hewitt:     Do you believe those cancers were related to
    asbestos?
    Juror 251:      I don't know.   They both had lung cancer.
    Mr. Hewitt:     Were they around asbestos?
    Juror 251:      Mechanics the same as I am, both smoke, so it's
    anybody's guess.
    App. 68-70.
    The Court:     He thinks he has asbestos coursing through his
    system.
    . . . .
    (..continued)
    The Court:      I just want to clarify in my own mind, you have
    been exposed to the brake linings and flakes from
    brake linings?
    Juror 251:      Yes.
    The Court:      For many years now?
    Juror 251:      Yes, sir.
    The Court:      And you think that probably asbestos fibers made
    their way in through your own system because when
    you had the air hose --
    Juror 251:      You see our Local, I am a member of the Local, and
    when all this asbestos problem came out, the Union
    started testing some of the older members. It was
    like they finally knocked it off like 97 percent
    of the people tested, tested positive for
    asbestos. And back then, we didn't know nothing
    about it. You took brakes off the truck, took the
    air hose blew it off, disk, clutch, all asbestos,
    and I said yesterday, I probably had eaten a
    couple of pounds of it, and I have never been
    tested for it, but I have been subject to it.
    The Court:      If you are on this case you would be deciding
    certain questions, concerning somebody who died of
    asbestos exposure, how much money to award. Do
    you think because of your own personal experience
    perhaps to a certain extent because of your
    uncles, you are not sure of the cause of the
    death, whether cigarettes or something to do with
    asbestos, do you think you could be fair or would
    you be inclined --
    Juror 251:      Like I said, most of what I seen has been against
    it. I would have to sit and listen to the case.
    If the one attorney can prove that it wasn't, I
    could handle that. But at this point right now I
    only know the one side of it.
    The Court:      The way it's going to be, the plaintiff has the
    burden of proof, not the defendant. And do you
    think you could decide the case fairly or do you
    think because of your own personal experiences you
    would be sort of caught up in it and tend to favor
    the plaintiff?
    Specifically, we note the following facts which raise substantial
    questions of the potential bias of juror #251: (1) during the
    course of his work history he had "probably eaten a couple of
    pounds of [asbestos]"; (2) he was a union shop steward for 35
    years and received one-sided literature from the union regarding
    asbestos; (3) he believed that 97% of the older workers in his
    local union had tested positive for asbestos in their system; (4)
    he had two uncles who died of lung cancer and although they were
    cigarette smokers, they had been exposed to asbestos during the
    (..continued)
    Juror 251:     I think   I could do it fairly. I have    been a shop
    steward   for 35 years. Lots of time I    have to go
    against   the company. That didn't sit    too well but
    I think   I could sit and listen to the   facts.
    . . . .
    Juror 251:     I think I could weed through it. Most of the
    information I have has been from the side of the
    Union coming with the asbestos. And really, it's
    a one-sided argument.
    . . . .
    Mr. Hewitt:      I think you indicated earlier that you would lean
    a little --
    Juror 251:       Well, at this point I would have to be [a] liar if
    I said to you -- the facts that I had lean in
    favor of the possibility or the possibility of it
    happening. I haven't really had any, a lot of
    facts thrown to me, where it is not, and like I
    said, I would have to hear what they have to say,
    and determine from that. I just can't crystal-
    ball, say this gentleman is going to convince me
    that the client, his client did die from it. I
    just have to listen to the facts, and just
    understand all the facts that I had about it have
    been the negative, from your standpoint, so I
    would have to weed out one or the other.
    App. at 76-79.
    course of their work lives; (5) he admitted in the first instance
    that he was leaning in favor of the plaintiff and against the
    asbestos company; (6) he believed that he was "probably high on
    the priority list" of getting an asbestos-related disease
    himself; and (7) he knew "a lot of [union] members" who
    presumably had asbestos-related medical problems.
    Owens-Corning next argues that prospective juror # 45
    should have been struck for cause because he had responded to the
    jury questionnaire that he could not be fair and later repeated
    at voir dire that he would have a difficult time being fair to
    the defendant.   Kirk counters by pointing out that when further
    questioned by the district court as to whether he could render a
    fair and impartial verdict, the prospective juror responded in
    the affirmative.4   Again, we are troubled because the second
    4
    .   Relevant portions of the voir dire are as follows:
    The Court:       In this case, sir, if you are on this jury can you
    well and truly try the case based on the evidence
    as it comes forth from the witness stand and not,
    with all respects [sic] to the media, based on TV,
    or radio or newspapers and all of that? Do you
    think you could do that, sir?
    Juror 45:        Yes, I believe so, because it's possible it could
    be slanted one way or the other.
    . . . .
    The Court:       So you answered that you could not be fair to
    companies that made, distributed, supplied and/or
    installed asbestos-containing products, what do
    you mean by that?
    Juror 45:        Basically I feel it's sort of immoral to knowingly
    produce something you know is going to cause a
    problem.
    prospective juror: (1) stated in the jury questionnaire that he
    could not be fair to companies that made, distributed, supplied
    and/or installed asbestos-containing products; (2) felt it was
    immoral to produce asbestos if the company knew it was going to
    cause a problem; and (3) indicated that he could not be fair to
    (..continued)
    The Court:     Do you think it's immoral -- I am not saying this
    is the case -- to produce something when they
    don't know anything is wrong with it, they don't
    know but it turns out later there is something
    wrong with it?
    Juror 45:        I feel if they do find out it should be corrected.
    . . . .
    The Court:       [D]o you think you could be fair?
    Juror 45:        Yes.
    Mr. Hewitt:      One question, if the evidence is that Owens
    Corning knew that asbestos was hazardous would you
    have a tough time giving them a fair shake?
    Juror 45:        Yes, I would.
    The Court:       What do you mean   by giving them a fair shake?
    Would you have a   tough time coming up with a
    verdict in their   favor if you know the [sic] under
    the evidence and   the law they are liable?
    Juror 45:        Well --
    The Court:       I would tell you if it comes in, if the evidence
    and the law did not demonstrate that the plaintiff
    proved their [sic] case, I am not saying that is
    not being fair to the defendant, you are being
    fair, just as you would be fair to the plaintiff
    if after fairly considering the evidence you find
    there's not a case made out, you would
    nevertheless find against her, you are abiding by
    your oath as a juror.
    Juror 45:        Whatever you say, yes.
    App. at 64-66.
    the defendant if the evidence indicated that Owens-Corning knew
    that asbestos was hazardous.      Only after being repeatedly asked
    if he could be fair, the juror answered, "Whatever you say, yes."
    Recently, we had the opportunity to decide a similar
    case involving a challenge to a district court's refusal to
    remove several jurors for cause.      
    Polan, 970 F.2d at 1284
    .      In
    that case, which involved a prosecution for conspiracy to
    distribute and the distribution of illegally prescribed drugs,
    counsel for the defendant challenged for cause three prospective
    jurors who revealed during voir dire that either they or members
    of their families were victims of drug abuse.      
    Id. Juror #1
    revealed that one of his brothers had died of a drug overdose and
    another brother had served a lengthy prison term for drug
    offenses.    
    Id. n.2. Juror
    # 2 indicated that she had become
    dependent upon tranquilizers after experiencing a family tragedy.
    
    Id. Juror #
    3 revealed that his son had abused alcohol and drugs
    in the past.     
    Id. However, all
    three prospective jurors
    ultimately assured the court that their past experiences would
    not affect their decision making and that they would be fair and
    impartial.     After reviewing the record of the voir dire, we
    concluded that the district court did not abuse its discretion in
    refusing to strike those prospective jurors.      
    Polan, 970 F.2d at 1284
    .
    We find that Polan is distinguishable from the case
    before us.     In Polan, the defendant wanted the prospective jurors
    removed presumably because he believed that some of their past
    experiences would make them more likely to vote for conviction.
    With regard to juror # 1, we gave little weight to the theory
    that an individual whose one brother died of a drug overdose and
    whose other brother served a prison sentence for drug offenses
    would be more likely to convict a criminal defendant charged with
    drug distribution.   With regard to juror # 2, we were not
    convinced that a person who became dependent on sedatives after
    the shock of a family tragedy would be more likely to convict an
    individual accused of distributing drugs.   Finally, with regard
    to juror # 3, we gave little credence to the notion that a father
    who endured his son's alcohol and drug problems would be biased
    in favor of the prosecution.   Thus, when the district court in
    Polan credited the assurances of the three prospective jurors, it
    implicitly made two findings: (1) that the jurors were telling
    the truth and (2) despite the experiences and personal biases of
    the jurors, they could be fair and impartial, precisely because
    their past experiences and personal biases did not make them more
    likely to convict the defendant.
    Here, Owens-Corning objected to jurors # 251 and # 45
    being seated on the jury because it believed that their personal
    biases regarding asbestos and asbestos companies would make them
    more likely to return a finding of liability and a large damage
    award against Owens-Corning.   Unlike the defendant in Polan,
    Owens-Corning's fear, that the prospective witnesses' past
    experiences and personal biases would affect their decision, was
    well-founded.
    Juror # 251 inhaled a considerable amount of asbestos,
    knew people who were suffering from asbestos-related diseases,
    and thought himself likely to succumb to some asbestos-related
    disease in the future.    Thus, there was good reason to conclude
    that he would be more likely to return a large damage award
    because he sympathized with the plaintiff.    See Gumbs v. Pueblo
    International, Inc., 
    823 F.2d 768
    , 773 (3d Cir. 1987) ("[A]
    jur[or] may not abandon analysis for sympathy for a suffering
    plaintiff and treat an injury as though it were a winning lottery
    ticket.").    It is difficult to conceive of a juror who would be
    more partial to this plaintiff than juror # 251.    Because juror #
    251's background is replete with circumstances which would call
    into question his ability to be fair to an asbestos manufacturer,
    we find that it was improper to allow him to serve on the jury.
    Juror # 45 stated that he was biased against asbestos
    companies and felt it was immoral knowingly to produce harmful
    and defective products.    The danger existed that this juror would
    return a verdict of liability against Owens-Corning even if
    Owens-Corning's products were not responsible for the decedent's
    injuries.    We can think of few admissions more compelling in
    asbestos litigation than a prospective juror who acknowledges
    that he would have moral qualms about being fair to an asbestos
    manufacturer.
    We conclude that juror # 45 and especially juror # 251
    could not serve fairly and impartially in light of their past
    experiences and personal biases.    The district court relied too
    heavily on the jurors' assurances of impartiality, and therefore
    abused its discretion.    A district court's refusal to excuse a
    juror will not automatically be upheld simply because the
    district court ultimately elicits from the prospective juror that
    he will be fair and impartial, despite earlier statements or
    circumstances to the contrary.   The application of Owens-Corning
    to dismiss these two jurors for cause should have been granted.
    The jury was not fairly and impartially constituted, and
    accordingly we will order a new trial.
    III.   Prior Testimony of Out of Court Witness
    During the liability phase of the trial, Owens-Corning
    offered the expert testimony of Dr. Harry Demopoulos to prove
    that the overwhelming majority of asbestos-induced mesotheliomas
    are caused by crocidolite asbestos fiber.   This testimony
    supported Owens-Corning's defense that its product, Kaylo, which
    did not contain crocidolite fiber, could not have caused the
    decedent's mesothelioma.   Over Owens-Corning's objection, Kirk
    was permitted to read to the jury the prior trial testimony of
    Dr. Louis Burgher from an unrelated New Jersey State Court
    asbestos action in 1992.   In that case, Dr. Burgher had been an
    expert witness for Owens-Corning and testified on cross-
    examination that it was possible for mesothelioma to be caused by
    chrysotile fibers contaminated with tremolite.   Kirk was clearly
    attempting to discredit Owens-Corning's defense offered through
    Dr. Demopoulos by revealing to the jury that Owens-Corning's
    expert witness in a previous case voiced a different and
    contradictory opinion as to which asbestos fibers cause
    mesothelioma.    After the jury returned a verdict in favor of
    Kirk, Owens-Corning made a post-trial motion for a new trial
    based in part on the alleged admission of hearsay evidence, i.e.,
    the prior testimony of Dr. Burgher in an unrelated case.     The
    district court denied this motion.
    Normally, when a new trial is sought by reason of a
    district court's alleged error in allowing the introduction of
    evidence, we review for abuse of discretion.   Lippay v. Christos,
    
    996 F.2d 1490
    , 1496 (3d Cir. 1993) (citing Link v. Mercedes-Benz,
    
    788 F.2d 918
    , 921-22 (3d Cir. 1986)).   However, where as here the
    ruling on admissibility of hearsay evidence implicates the
    application of a legally set standard, our review is plenary.
    Id.; see also United States v. McGlory, 
    968 F.2d 309
    , 332 (3d
    Cir. 1992).
    Owens-Corning argues that the district court erred in
    allowing the jury to hear this evidence in light of the fact that
    it was hearsay.   Although the record is at best vague as to what
    the district court's basis was for allowing such testimony, Kirk
    attempts to justify its admission under two distinct theories --
    either the testimony was not hearsay pursuant to Rule
    801(d)(2)(C) of the Federal Rules of Evidence or it was hearsay,
    but subject to an exception pursuant to Rule 804(b)(1).5
    A.   Rule 801(d)(2)(C) of the Federal Rules of Evidence
    5
    . Alternatively, Kirk argues that assuming arguendo it was
    error to admit the testimony of Dr. Burgher, it was harmless
    error because the weight of the medical testimony of Kirk's other
    witnesses was overwhelming. In light of our decision to remand
    for a new trial because the jury was improperly constituted, we
    need not address whether any evidentiary errors may be harmless.
    Kirk first attempts to justify the district court's
    admission of the prior trial testimony of Dr. Burgher by arguing
    it is an admission by a party opponent since it is a statement by
    a person authorized by Owens-Corning to speak concerning
    mesothelioma and is thus not hearsay.   See Fed. R. Evid.
    801(d)(2)(C)6; see also Precision Piping v. E.I. du Pont de
    Nemours, 
    951 F.2d 613
    , 619 (4th Cir. 1991) (authority in the
    context of 801(d)(2)(C) means "authority to speak" on a
    particular subject on behalf of someone else).   In her brief,
    Kirk argues that Dr. Burgher was authorized by Owens-Corning to
    offer his expert opinion about medical literature regarding
    mesothelioma and fiber type.   Appellee's Brief at 21.   At oral
    argument, Kirk suggested that the testimony of any expert that
    Owens-Corning has previously used in a trial can be used in
    future litigation against it as an authorized admission.
    In support of this proposition, Kirk cites Collins v.
    Wayne Corp., 
    621 F.2d 777
    , 782 (5th Cir. 1980), which held that
    deposition testimony of an expert employed by a bus manufacturer
    to investigate an accident was an admission under 801(d)(2)(C).
    However, in that case the court made a finding that the expert
    6
    . Rule 801(d) of the Federal Rules of Evidence states in
    relevant part:
    (d) Statements which are not hearsay. A statement is
    not hearsay if --
    (2) Admission by party-opponent. The statement is
    offered against a party and is . . .
    (C) a statement by a person authorized by the party to
    make a statement concerning the subject.
    Fed. R. Evid. 801(d)(2)(C) (emphasis added).
    witness was an agent of the defendant and the defendant employed
    the expert to investigate and analyze the bus accident.    
    Id. The court
    determined that in giving his deposition, the expert was
    performing the function that the manufacturer had employed him to
    perform.     As such, the court concluded that the expert's report
    of his investigation and his deposition testimony in which he
    explained his analysis and investigation was an admission of the
    defendant.    Id.; see also Theriot v. J. Ray McDermott & Co.,
    Inc., 
    742 F.2d 877
    , 882 (5th Cir. 1984) (citing Collins v. Wayne
    Corp., 
    621 F.2d 777
    , 781-82 (5th Cir. 1980)) (explaining that
    Collins holds that "an agent's statement, made within the scope
    of his authority . . . is admissible against the principal as an
    admission").
    Kirk misconstrues the entire premise of calling expert
    witnesses.    In theory, despite the fact that one party retained
    and paid for the services of an expert witness, expert witnesses
    are supposed to testify impartially in the sphere of their
    expertise.    Thus, one can call an expert witness even if one
    disagrees with the testimony of the expert.    Rule 801(d)(2)(C)
    requires that the declarant be an agent of the party-opponent
    against whom the admission is offered, and this precludes the
    admission of the prior testimony of an expert witness where, as
    normally will be the case, the expert has not agreed to be
    subject to the client's control in giving his or her testimony.
    See Sabel v. Mead Johnson & Co., 
    737 F. Supp. 135
    , 138 (D. Mass
    1990).     Since an expert witness is not subject to the control of
    the party opponent with respect to consultation and testimony he
    or she is hired to give, the expert witness cannot be deemed an
    agent.   See Restatement (Second) of Agency § 1 cmt. a (1958)
    ("The relation of agency is created as the result of conduct by
    two parties manifesting that one of them is willing for the other
    to act for him subject to his control, and that the other
    consents so to act.")
    Because an expert witness is charged with the duty of
    giving his or her expert opinion regarding the matter before the
    court, we fail to comprehend how an expert witness, who is not an
    agent of the party who called him, can be authorized to make an
    admission for that party.7   See Michael H. Graham, Federal
    Practice and Procedure: Evidence § 6722, at 502 (Interim Edition
    1992) (the authority of the agent to speak as to a subject must
    be established at trial).    We are unwilling to adopt the
    proposition that the testimony of an expert witness who is called
    to testify on behalf of a party in one case can later be used
    against that same party in unrelated litigation, unless there is
    a finding that the expert witness is an agent of the party and is
    authorized to speak on behalf of that party.    Accordingly, we
    find Dr. Burgher's prior trial testimony to be hearsay in the
    context of the present trial.
    7
    . In the case before us, unlike Collins, there was no explicit
    finding on the record that Dr. Burgher was an agent of the
    defendant. To the extent that Collins holds that an expert
    witness who is hired to testify on behalf of a party is
    automatically an agent of that party who called him and
    consequently his testimony can be admitted as non-hearsay in
    future proceedings, we reject this rule.
    B.   Rule 804(b)(1) of the Federal Rules of Evidence
    Because the testimony of Dr. Burgher is hearsay, we
    must next inquire whether it falls within any of the hearsay
    exceptions enumerated in the Federal Rules of Evidence.   Kirk
    argues that Dr. Burgher's testimony falls within the former
    testimony hearsay exception of Rule 804(b)(1).    In order for
    former testimony to be admissible as an exception to the hearsay
    rule: (1) the declarant must be unavailable; (2) testimony must
    be taken at a hearing, deposition, or civil action or proceeding;
    and (3) the party against whom the testimony is now offered must
    have had an opportunity and similar motive to develop the
    testimony by direct, cross, or redirect examination.    See Fed. R.
    Evid. 804(a)(5), (b)(1).8   Because Dr. Burgher testified in open
    8
    . Rule 804 of the Federal Rules of Evidence states in relevant
    part:
    (b) Hearsay exceptions. The following are not excluded by the
    hearsay rule if the declarant is unavailable as a witness:
    (1) Former testimony. Testimony given as a witness at another
    hearing of the same or different proceeding, or in a deposition
    taken in compliance with law in the course of the same or another
    proceeding, if the party against whom the testimony is now
    offered, or, in a civil action or proceeding, a predecessor in
    interest, had an opportunity and similar motive to develop the
    testimony by direct, cross, or redirect examination.
    Fed. R. Evid. 804(b)(1) (emphasis supplied).
    "Unavailability" is defined in Rule 804 as follows:
    (a) Definition of unavailability. "Unavailability as a witness"
    includes situations in which the declarant --
    (5) is absent from the hearing and the proponent of a statement
    has been unable to procure the declarant's attendance . . . by
    process or other reasonable means.
    court during the state court action, no one disputes that the
    second element has been satisfied.
    Regarding the first element, we note that it is an
    abuse of discretion for a district court to admit former
    testimony into evidence under Rule 804(b)(1) without a finding of
    unavailability.   See O'Banion v. Owens-Corning Fiberglas Corp.,
    
    968 F.2d 1011
    , 1014 (10th Cir. 1992) (district court abused its
    discretion in admitting former testimony of expert where there
    was no showing of unavailability).    Because there was no finding
    on the record as to unavailability, if the district court based
    admitting this testimony on Rule 804(b)(1), we hold that the
    district court abused its discretion in allowing this former
    testimony into evidence.
    Normally, our inquiry would end here after determining
    that former testimony cannot be admitted absent specific findings
    of unavailability.   However, because of the likelihood that an
    offer may be made during the retrial of this matter to admit this
    testimony as former testimony, we believe further discussion is
    warranted.
    We observe that it is the proponent of the statement
    offered under Rule 804 who bears the burden of proving the
    unavailability of the declarant.     United States v. Eufracio-
    Torres, 
    890 F.2d 266
    , 269 (10th Cir. 1989), cert. denied, 
    494 U.S. 1008
    , 
    110 S. Ct. 1306
    (1990) (citing Ohio v. Roberts, 
    448 U.S. 56
    , 65, 
    100 S. Ct. 2531
    , 2538-39 (1980)); 2 John William
    (..continued)
    Fed. R. Evid. 804(a)(5) (emphasis supplied).
    Strong et al., McCormick on Evidence § 253, at 134 (4th ed. 1992)
    ("The proponent of the hearsay statement must . . . show that the
    witness cannot be found").    We can find nothing in the record
    which indicates any "reasonable means" employed by Kirk to
    procure the services of Dr. Burgher so that he might testify at
    trial.     See McCormick § 253, at 134 (mere absence of the
    declarant, standing alone, does not establish unavailability);
    see also Moore v. Mississippi Valley State University, 
    871 F.2d 545
    , 552 (5th Cir. 1989) (deposition inadmissible in civil trial
    where no evidence to establish unavailability offered).
    Kirk claims that Dr. Burgher, who is a resident of
    Nebraska, was beyond her ability to subpoena and was thus
    unavailable.    See Fed. R. Civ. P. 45(c)(3)(A)(ii).9   However,
    Kirk made no independent attempt to contact Dr. Burgher, offer
    him his usual expert witness fee, and request his attendance at
    trial.10    Because Dr. Burgher was never even as much as
    9
    . Rule 45 of the Federal Rules of Civil Procedure states in
    relevant part:
    (c) Protection of Persons Subject to Subpoenas.
    (3)(A) On timely motion, the court by which a subpoena was
    issued shall quash or modify the subpoena if it --
    (ii) requires a person who is not a party or an officer
    of a party to travel to a place more than 100 miles from the
    place where that person resides, is employed or regularly
    transacts business in person . . . .
    Fed. R. Civ. P. 45(c)(3)(A)(ii).
    10
    . At oral argument, Kirk argued that it was the responsibility
    of Owens-Corning to locate and contact Dr. Burgher and establish
    his availability because the district court requested Owens-
    Corning to determine whether he would be available to testify.
    To the extent that the district court placed the burden on Owens-
    Corning to establish the unavailability of Dr. Burgher, the
    contacted, Kirk has failed to prove that she used "reasonable
    means" to enlist his services.
    We next address whether Owens-Corning had an
    opportunity and similar motive to develop the testimony of Dr.
    Burgher at the prior unrelated state court trial.11   The
    similarity of motive requirement assures "that the earlier
    treatment of the witness is the rough equivalent of what the
    party against whom the statement is offered would do at trial if
    the witness were available to be examined by that party."    United
    States v. Salerno, 
    937 F.2d 797
    , 806 (2d Cir. 1991); see also 2
    Steven A. Saltzburg & Michael M. Martin, Federal Rules of
    Evidence Manual 400 (5th ed. 1990) ("The way to determine whether
    or not motives are similar is to look at the similarity of the
    issues and the context in which the opportunity for examination
    previously arose.").
    (..continued)
    district court made an error of law in shifting the burden of
    proof. Kirk then articulated what we term a "convenience"
    argument, that is, she argued that Dr. Burgher was Owens-
    Corning's expert and Owens-Corning was in a better position to
    locate Dr. Burgher because it had Dr. Burgher's telephone number.
    To the extent that Kirk is advocating that Owens-Corning should
    undertake the task of locating a witness for Kirk so that she may
    use that testimony against Owens-Corning, we reject any such
    notion. For the same reasons we protect an attorney's work
    product from discovery, see Fed. R. Civ. P. 26(b)(3); Hickman v.
    Taylor, 
    329 U.S. 495
    , 511, 
    67 S. Ct. 385
    , 394 (1947)
    ("Inefficiency, unfairness, and sharp practices would inevitably
    develop . . . . The effect on the legal system would be
    demoralizing. And the interests of the clients and the cause of
    justice would be poorly served."), we do not believe that Owens-
    Corning had any duty to assist Kirk in preparing her case.
    11
    . Again, although we need not reach this issue absent a
    finding of unavailability, because of the likelihood that an
    offer may be made during the retrial to admit this evidence as
    former testimony, we believe further discussion is warranted.
    There was no finding by the district court that Owens-
    Corning had an opportunity and similar motive to examine Dr.
    Burgher.    Further, during oral argument, counsel for Kirk
    indicated that the only document before the district court from
    the state court trial was the transcript of Dr. Burgher's
    testimony.     The district court did not have the complaint,
    answer, or jury charge from the state court proceedings.       Thus,
    even if the district court had attempted to make a finding as to
    opportunity and similar motive, it would have been unable to
    reach a well-reasoned conclusion based on the information before
    the district court.12    See McCormick § 304, at 317 (courts must
    look to the operative issue in the earlier proceeding).
    Accordingly, we must conclude that Kirk failed to prove that
    Owens-Corning had an opportunity and similar motive to examine
    Dr. Burgher.
    IV. Introduction of Interrogatory of Settled Co-
    Defendant
    Kirk settled the instant action with Garlock and
    several other defendants prior to trial.    At trial, Owens-Corning
    12
    . For instance, the statement elicited from Dr. Burgher during
    cross-examination at the state trial may not have warranted
    redirect by Owens-Corning in light of its theory of defense. See
    McCormick § 302, at 307 ("Circumstances may differ sufficiently
    between the prior hearing and the present trial to bar admission
    . . . as where questions on a particular subject would have been
    largely irrelevant at the earlier proceeding."). Because we do
    not have the pleadings, we cannot determine whether an
    opportunity and similar motive existed.
    sought in its cross-claim to prove that the decedent was exposed
    to products made by Garlock.   If the jury were to conclude that
    the decedent's injuries had been caused in whole or part by
    exposure to Garlock products, then Owens-Corning could eliminate
    or substantially reduce its liability.   Conversely, it was in
    Kirk's financial interest to prove that the decedent was exposed
    to only Owens-Corning products.   In an effort to rebut the
    testimony of an Owens-Corning witness who testified that Garlock
    gaskets were present in the New York shipyard during the years
    that the decedent worked there, Kirk read into evidence an
    interrogatory response which was prepared and filed by Garlock in
    defense of this action.   Of course, at the time this
    interrogatory was read to the jury, Garlock was no longer a party
    to this lawsuit.   Specifically, counsel for Kirk read the
    following statement to the jury:
    Since Garlock products are bonded and/or
    encapsulated and treated in such a manner
    that they do not, when used in the manner for
    which they were intended, emit meaningful
    levels of asbestos dust and fibers, no
    restrictions or limitations on use are
    necessary.
    App. at 513.   In response to Owens-Corning's closing remarks,
    counsel for Kirk reminded the jury:
    I read you from the Garlock interrogatory,
    Garlock product is bonded, encapsulated, it
    does not emit dust.
    App. at 545.
    Owens-Corning argues that the district court erred in
    admitting this interrogatory response because the interrogatory
    answer was pure hearsay.   Kirk attempts to justify the admission
    of this interrogatory response under the catch-all or residual
    exception, Rule 803(24) of the Federal Rules of Evidence.13   As
    stated previously, our standard of review is plenary where the
    admissibility of hearsay evidence "implicates the application of
    a legally set standard."   See supra part III.
    As a preliminary matter, we note that the plain
    language of the rule requires the proponent of the hearsay
    statement to put the adverse party on notice that the proponent
    intends to introduce the statement into evidence.   We have
    interpreted this to mean that the proponent must give notice of
    the hearsay statement itself as well as the proponent's intention
    specifically to rely on the rule as a grounds for admissibility
    13
    . Rule 803 of the Federal Rules of Evidence states in relevant
    part:
    The following are not excluded by the hearsay rule, even though
    the declarant is available as a witness:
    . . .
    Other exceptions. A statement not specifically covered by any of
    the foregoing exceptions but having equivalent circumstantial
    guarantees of trustworthiness, if the court determines that (A)
    the statement is offered as evidence of a material fact; (B) the
    statement is more probative on the point for which it is offered
    than any other evidence which the proponent can procure through
    reasonable efforts; and (C) the general purposes of these rules
    and the interests of justice will best be served by admission of
    the statement into evidence. However, a statement may not be
    admitted under this exception unless the proponent of it makes
    known to the adverse party sufficiently in advance of the trial
    or hearing to provide the adverse party with a fair opportunity
    to prepare to meet it, the proponent's intention to offer the
    statement and the particulars of it, including the name and
    address of the declarant.
    Fed. R. Evid. 803(24) (emphasis added).
    of the hearsay statement.   United States v. Pelullo, 
    964 F.2d 193
    , 202 (3d Cir. 1992) (citing United States v. Furst, 
    886 F.2d 558
    , 574 (3d Cir. 1989)).   Even assuming arguendo that Owens-
    Corning was on notice that Kirk intended to introduce this
    evidence at trial, we observe from the record that Kirk never
    gave notice to Owens-Corning that she intended to introduce this
    evidence under Rule 803(24).   App. at 512.   We recognize that the
    advance notice requirement of Rule 803(24) can be met where the
    proponent of the evidence is without fault in failing to notify
    his adversary and the trial judge has offered sufficient time, by
    means of granting a continuance, for the opponent to prepare to
    contest its admission.   See United States v. Bailey, 
    581 F.2d 341
    , 348 (3d Cir. 1978) (the purposes of the rule and the
    requirement of fairness are satisfied under such circumstances).
    Because of the lack of notice by Kirk that she intended to rely
    on Rule 803(24) and the lack of a showing by Kirk as to why it
    was not possible to provide Owens-Corning with notice, the
    district court erred in admitting this evidence at trial.
    Turning to the substance of the rule itself, we note
    that in order for the hearsay statement to be admitted, it must
    have "equivalent circumstantial guarantees of trustworthiness."
    Fed. R. Evid. 803(24); see also Michael H. Graham, Federal
    Practice and Procedure: Evidence § 6775, at 737-39 (Interim
    Edition 1992) (factors bearing on trustworthiness include the
    declarant's partiality, i.e., interest or bias).   Owens-Corning
    argues that the interrogatories of Garlock lack trustworthiness
    and are self-serving.    Kirk submits that the interrogatory
    answers are trustworthy because they are signed and sworn under
    penalty of perjury.14   We find that an interrogatory response of
    a co-defendant who is seeking to avoid liability lacks the
    "circumstantial guarantees of trustworthiness" that are
    contemplated by Rule 803(24) of the Federal Rules of Evidence.
    Garlock had every incentive to set forth the facts in a light
    most favorable to itself, while at the same time still answering
    the interrogatories truthfully.      See United States v. DeLuca, 
    692 F.2d 1277
    , 1285 (9th Cir. 1982) (excluding statement under
    residual hearsay exception because of motive to exculpate oneself
    after indictment or investigation).     Using these interrogatory
    responses to prove that Garlock products could not have caused
    the decedent's illness without the opportunity for cross-
    examination implicates many of the dangers the hearsay rule is
    designed to prevent.    Accordingly, the district court erred in
    admitting this evidence.
    V.   Delay Damages
    Finally, Owens-Corning argues that it was improper as a
    matter of law for the district court to award delay damages to
    the plaintiff pursuant to Rule 238 of the Pennsylvania Rules of
    14
    . There is nothing in the record to indicate that the district
    court made any findings as to the reliability of the Garlock
    interrogatories. See United States v. Chu Kong Yin, 
    935 F.2d 990
    , 1000 (9th Cir. 1991) (requiring specific findings regarding
    the requisite elements of Rule 803(24)); United States v.
    Tafollo-Cardenas, 
    897 F.2d 976
    , 980 (9th Cir. 1990) (district
    court must find that the statements met the requirements of the
    rule in order for the appellate court to consider the
    admissibility of the statement under 803(24)).
    Civil Procedure because it is a procedural rule and should not be
    applied by federal courts sitting in diversity.      Owens-Corning
    argues in the alternative that even if it is permissible for a
    federal court sitting in diversity to award delay damages
    pursuant to Rule 238, it was improper here because: (1) the
    entire delay was caused by the plaintiff's strategic decision to
    file simultaneous federal and state court actions and her failure
    to request a remand of the federal action from the multidistrict
    docket when settlement negotiations reached an impasse and (2)
    the district court miscalculated the damage award in failing to
    account for a delay of approximately two years that was caused by
    a judicial stay imposed by the Panel on Multidistrict Litigation.
    Owens-Corning maintains that because it was not responsible for
    the delay, it should not be required to pay delay damages for
    that period.
    A.    Rule 238 of the Pennsylvania Rules of Civil
    Procedure -- Substantive or Procedural?
    First, we must address Owens-Corning's argument that a
    federal court sitting in diversity cannot apply Rule 238 of the
    Pennsylvania Rules of Civil Procedure because it is a procedural
    rather than a substantive rule.      Yet, ultimately, Owens-Corning
    concedes, as it must, that this question has already been decided
    by this Court in Fauber v. Kem Transportation and Equipment Co.,
    
    876 F.2d 327
    (3d Cir. 1989).      In that case, we held that Rule 238
    is substantive and must be followed by federal courts sitting in
    diversity cases.    
    Id. at 328.
      Counsel is thus implicitly asking
    this panel to overrule Fauber.   We note that this Court's
    Internal Operating Procedures prohibit a panel of this Court from
    overruling a published opinion of a previous panel.     See Internal
    Operating Procedure Rule 9.1 ("[T]he holding of a panel in a
    reported opinion is binding on subsequent panels.").    Because we
    are bound by Fauber, and in any event do not question its wisdom,
    we reiterate that it is proper for a federal district court
    sitting in diversity to award delay damages to a plaintiff under
    Rule 238 of the Pennsylvania Rules of Civil Procedure.
    B.   Did Plaintiff Cause Delay?
    Second, Owens-Corning maintains that Kirk was
    responsible for the delay because she filed simultaneous federal
    and state court actions and additionally failed to make an
    application to remand the federal action from the multidistrict
    docket when settlement negotiations proved fruitless.
    Our review of the applicability of Rule 238 in a
    diversity case is plenary.   
    Fauber, 876 F.2d at 329
    .    Rule 238 of
    the Pennsylvania Rules of Civil Procedure states in relevant
    part:
    (a)(1) At the request of the plaintiff in
    a civil action seeking monetary relief for .
    . . death[,] . . . damages for delay shall be
    added to the amount of compensatory damages
    awarded against each defendant . . . found to
    be liable to the plaintiff in the verdict of
    a jury . . . .
    (2) Damages for delay shall be awarded
    for the period of time
    (i) in an action commenced before
    August 1, 1989, from the date the plaintiff
    first filed a complaint or from a date one
    year after the accrual of the cause of
    action, whichever is later, up to the date of
    the . . . verdict . . . .
    (3) Damages for delay shall be
    calculated at the rate equal to the prime
    rate as listed in the first edition of the
    Wall Street Journal published for each
    calendar year for which the damages are
    awarded, plus one percent, not compounded.
    (b) The period of time for which damages
    for delay shall be calculated under
    subdivision (a)(2) shall exclude the period
    of time, if any,
    (1) after which the defendant has made
    a written offer of
    (i) settlement in a specified sum
    with prompt cash payment to the plaintiff, or
    (ii) a structured settlement
    underwritten by a financially responsible
    entity, and continued that offer in effect
    for at least ninety days or until
    commencement of trial, whichever first
    occurs, which offer was not accepted and the
    plaintiff did not recover by award, verdict
    or decision, exclusive of damages for delay,
    more than 125 percent of either the specified
    sum or the actual cost of the structured
    settlement plus any cash payment to the
    plaintiff; or
    (2) during which the plaintiff caused
    delay of the trial.
    Pa. R. Civ. P. 238 (1988) (emphasis added).
    According to the plain language of the rule, a
    defendant must pay delay damages unless the delay falls within
    the excludable time as set forth in the rule.   Owens-Corning
    concedes that it did not make a settlement offer which would
    satisfy the rule.   Thus, the only other way for the defendant to
    be relieved from paying delay damages would be if the plaintiff
    caused the delay.
    According to Owens-Corning, but for the plaintiff's
    strategic decision to file a federal asbestos action, the matter
    could have been resolved long ago in state court.   Here, Kirk
    would have been forced to abandon her remedy in federal court and
    seek relief only in the state forum.    To adopt the rule of law as
    advocated by Owens-Corning, we would be required to hold that
    delay is per se attributable to a plaintiff anytime a plaintiff
    files a diversity action in federal court when a suitable state
    forum exists.   Nothing in Rule 238 contemplates that a plaintiff
    must forgo any rights in order to be entitled to delay damages,
    and we are unwilling to adopt such a proposition.
    In support of its argument that Kirk was responsible
    for the delay in failing to request a remand from the
    multidistrict docket, Owens-Corning relies on Babich v.
    Pittsburgh & New England Trucking Co., 
    386 Pa. Super. 482
    , 
    563 A.2d 168
    (Pa. Super. Ct. 1989).   In that case, the plaintiff's
    motion for delay damages pursuant to Rule 238 was denied by the
    trial court and plaintiff appealed.    
    Babich, 386 Pa. Super. at 487
    , 563 A.2d at 171.   In assessing who was responsible for the
    almost seven year delay between the commencement of suit and the
    jury verdict, the court observed:
    [T]he chief reasons for delay in this case
    cannot be attributed to defendants. [One of
    the defendants] filed a Chapter 11 bankruptcy
    in federal court six months after
    [plaintiff's] complaint was filed and
    [plaintiff] did not successfully obtain
    relief from the automatic stay until
    approximately two years and four months later
    despite cooperation from counsel for the
    bankruptcy and counsel for the insurance
    company. The other primary delay in the case
    was [plaintiff's] failure to place the case
    at issue in a speedy fashion. [Plaintiff]
    fails to point to any delay attributable to
    defendants and we find none upon review of
    the record.
    
    Babich, 386 Pa. Super. at 487
    , 563 A.2d at 171.
    Owens-Corning argues that because Kirk did not seek a
    remand from the multidistrict docket, she failed to obtain relief
    from the MDL stay just as the plaintiff in Babich failed to
    obtain relief from the automatic stay.    Owens-Corning's reliance
    on Babich is misplaced.     In that case plaintiff could have sought
    relief and moved the trial along, because opposing counsel was
    cooperating with and assisting counsel.    Here, however, according
    to Judge Weiner's Pretrial Order, the case could be remanded for
    trial only if there was a finding that the defendant was acting
    in bad faith during the settlement negotiations.    To the extent
    that Owens-Corning is found to have acted in bad faith, this
    would militate against a finding that delay was caused by the
    plaintiff.
    C.     Is Delay Not Caused By Defendant Excludable?
    Third, Owens-Corning argues that because the delay was
    caused by the MDL Order, it offends traditional notions of fair
    play and due process to make a defendant pay for another's delay.
    Owens-Corning asks that the award of delay damages be
    recalculated and further maintains that it is unconstitutional to
    impose delay damages on it for this time period because it was
    never acting in bad faith and the delay was caused by the court.
    Were we to adopt the rule of law as articulated by Owens-Corning,
    we would have to redraft Rule 238(b)(2) to state "during which
    the defendant did not cause the delay of the trial," instead of
    "during which the plaintiff caused delay of the trial."     We are
    not so inclined and we find that the plaintiff caused no delay of
    the trial.
    Owens-Corning also argues that notwithstanding the
    language of the rule, requiring it to pay for delay caused by the
    judiciary is a violation of due process.     Owens-Corning fails to
    comprehend the theory underlying Rule 238.     Delay damages merely
    compensate a plaintiff for money that he or she would have earned
    on the award if he or she had promptly received it.     Costa v.
    Lauderdale Beach Hotel, 
    534 Pa. 154
    , 160, 
    626 A.2d 566
    , 569 (Pa.
    1993).   The rule also functions to prevent a defendant from being
    unjustly enriched by keeping interest that could be earned during
    the litigation process on what is essentially the plaintiff's
    money.   
    Id. n.6. We
    find no merit to Owens-Corning's argument
    that delay damages violate due process in this instance.
    Accordingly, we find no error in the district court's decision to
    award delay damages to the plaintiff.
    VI. Conclusion
    The seating of two jurors in this matter was error, as
    was allowing into evidence the prior testimony of a witness in an
    unrelated state court trial and permitting the introduction into
    evidence of an answer to an interrogatory by a settled co-
    defendant.    We will reverse the judgment of the district court
    and remand the matter to the district court for a new trial.
    Costs taxed against appellees.