Cimino v. Raymark Industries ( 1998 )

REVISED, September 8, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Nos. 93-4452 through 93-4611
CLAUDE CIMINO, ET AL.,
Plaintiffs-Appellees,
Cross-Appellants,
versus
RAYMARK INDUSTRIES, INC., ET AL.,
Defendants,
PITTSBURGH CORNING CORPORATION and
ASBESTOS CORPORATION LIMITED,
Defendants-Appellants,
Cross-Appellees.
Appeals from the United States District Court for the
Eastern District of Texas
August 17, 1998
Before REYNALDO GARZA, GARWOOD and DAVIS, Circuit Judges.
GARWOOD, Circuit Judge:
Before us are appeals and cross-appeals in personal injury and
wrongful death damage suits against several manufacturers of
asbestos-containing insulation products and some of their
suppliers, the district court’s jurisdiction being based on
diversity of citizenship and the governing substantive law being
that of Texas. This is the same set of cases addressed in In re
Fibreboard, 893 F.2d 706 (5th Cir. 1990), but the judgments now
before us result from a trial plan modified following that
decision.1 Principally at issue on this appeal is the validity of
that modified trial plan.
The district court originally consolidated the some 3,031 such
cases then pending in the Beaumont Division of the Eastern District
of Texas for trial of certain common issues under Fed. R. Civ. P.
42(a) and also certified a class action under Fed. R. Civ. P.
23(b)(3), the class generally consisting of the insulation and
construction workers, their survivors and household members, who
were plaintiffs in those pending cases. As explained in more
detail below, the trial plan ultimately implemented after
Fibreboard consisted of three phases, generally described as
follows. Phase I comprised a complete jury trial of the entire
individual cases of the ten class representatives and also a class-
wide determination of issues of product defectiveness, warning, and
punitive damages (including a multiplier as to each defendant).
Phase II, which was to address exposure on a craft and job site
basis, was dispensed with on the basis of a stipulation. In phase
III, 160 different individual cases (“sample cases”), some from
each of the five different allegedly asbestos-related diseases
included in the entire group of underlying cases, were tried to two
other juries to determine only each of those individual sample case
1
Of the district court’s several orders with reasons and
opinions in these cases, two are published. Cimino v. Raymark
Industries, 751 F. Supp. 649 (E.D. Tex. 1990); Cimino v. Raymark
Industries, 739 F. Supp. 328 (E.D. Tex. 1990).
2
plaintiffs’ respective actual damages from their asbestos-related
disease. Thereafter, and following a one-day bench hearing on the
basis of which the district court determined that in each disease
category the 160 sample cases were reliably representative of the
cases involving the like disease among the remaining some 2,128
cases,2 the court ruled that each of these remaining 2,128 cases
(the “extrapolation cases”) would be assigned by the court to one
of the five disease categories and each would be entitled to
judgment based on an amount of actual damages equal to the average
of the verdicts rendered in those of the 160 sample cases involving
the same disease category.3 Punitive damages in each case would be
essentially based on the phase I verdict.
By the time of the phase I trial, many of the defendants had
settled and others had taken bankruptcy or otherwise been disposed
of, so only five remained, namely appellant Pittsburgh Corning
Corporation (Pittsburgh Corning), Carey Canada, Celotex,
Fibreboard, and appellant Asbestos Corporation, Limited (ACL). The
case against ACL was tried to the court under the Foreign Sovereign
Immunities Act, 28 USC §§ 1330(a), 1603(b). By the time the amount
of the extrapolation case judgments was to be calculated, all
defendants except Pittsburgh Corning and ACL had passed out of the
2
By the time of the phase I trial, the original 3,031 total
cases had been reduced to 2,298 by settlement, severance, or
dismissal.
3
Remittiturs were ordered as to 35 of the 160 sample case
verdicts, and the averages were computed using the thus reduced
verdict figures as well as the 12 zero verdicts.
3
case.4
Judgment was entered against ACL in only two of the ten class
representative cases (and in none of either the phase III sample
cases or the extrapolation cases). Judgment was actually entered
against Pittsburgh Corning in a total of 157 cases, consisting of
9 of the class representative phase I cases, 143 of the phase III
sample cases, and 5 of the extrapolation cases (1 from each of the
5 different diseases included in the class).5 In these 157 cases,
Pittsburgh Corning has been cast in judgment for a total of
approximately $69,000,000.6 Pittsburgh Corning and ACL each appeal
the referenced judgments entered against them, and the plaintiffs
4
After the phase I trial and before the phase III trial began,
the district court dismissed all claims for actual damages against
Carey Canada, finding there could be no evidence any plaintiff was
exposed to its product (and the four contrary phase I verdicts were
set aside); although the court opined that Carey Canada would
nonetheless be liable for punitive damages, it appears that no such
judgment was rendered and the case against Carey Canada was
apparently severed. After the phase III trials were completed,
Celotex filed for bankruptcy and was severed, and Fibreboard
settled.
5
In one of the ten class representative cases, the phase I
jury returned a verdict for all defendants; the district court
subsequently granted a new trial in that case, and it has been
severed. After the phase III trial, the district court granted
Pittsburgh Corning’s motion for judgment in 17 of the 160 sample
cases. Pittsburgh Corning is the sole defendant in all but 2 of
these 157 judgments; in two of the class representative judgments
it and ACL are both cast in judgment (ACL for actual damages only).
6
Pittsburgh Corning asserts, without dispute, that the orders
for judgment in the remaining some 2,123 extrapolation cases (in
which judgments have not been entered) call for judgments against
Pittsburgh Corning in the approximate total amount of
$1,300,000,000 for actual damages only, excluding prejudgment
interest and punitive damages.
4
cross-appeal as to each.7 The issues presented in the ACL appeal
and cross-appeal are few and narrow, and we address them last.
Pittsburgh Corning’s appeal presents essentially two groups of
contentions, summarized as follows: first, those challenging the
implemented Cimino trial plan as a whole, particularly its asserted
failure to properly try and determine individual causation and, in
the five extrapolation cases, damages also, as to any plaintiffs
other than the class representatives, assertedly contrary to our
decision in Fibreboard and Texas substantive law and in derogation
of Pittsburgh Corning’s Seventh Amendment and Due Process rights;
and second, various other issues of a more particular and
traditional sort. Plaintiffs’ cross-appeal presents issues of only
the latter variety. We now turn to consider Pittsburgh Corning’s
appeal, addressing first its attacks on the trial plan.
I.
PITTSBURGH CORNING APPEAL
A. Trial Plan Attack
1. Trial Plan
Initial Plan
The Cimino trial plan initially adopted by the district court,
which we subsequently set aside in Fibreboard, also called for
three phases. In phase I, the jury would decide which, if any, of
each defendant’s products were defective as marketed and
unreasonably dangerous, when each defendant knew or should have
7
The 157 judgments appealed have been certified under Fed. R.
Civ. P. 54(b).
5
known workers or their household members were at risk, whether each
defendant was guilty of gross negligence in marketing its offending
product and, as to each defendant so guilty, a punitive damages
multiplier. In phase II, the same jury would decide the percentage
of plaintiffs in the class exposed to each defendant’s products,
the percentage of claims barred by limitations and other defenses,
and would determine a lump sum amount of actual damages for each
disease category for all plaintiffs in the class. The jury in this
phase would also make a full determination of liability and damages
with respect to each of the eleven class representatives
individually. And the jury in phase II would also hear such
evidence as the parties desired to present from up to thirty other
illustrative plaintiffs, fifteen chosen by the defense and fifteen
by plaintiffs, as well as expert testimony regarding the total
actual damages of the class, such expert testimony to be based,
among other things, on questionnaires filled out by all class
members and other discovery, including forty-five-minute oral
depositions of class members taken by defendants. In phase III, to
be non-jury, the court would distribute the awarded damages among
the individual class members.8
8
In adopting that plan, the district court adverted to its
earlier decision in Jenkins v. Raymark Industries, 109 F.R.D. 269
(E.D. Tex. 1985), aff’d, 782 F.2d 468 (5th Cir. 1986). However,
the district court declined to follow its Jenkins format, noting
that “[t]rying these [3,000] cases in groups of ten would consume
the entire available trial time for the Court . . . for the next
three years.” In Jenkins, the district court had adopted and we
had sustained a class action trial plan for similar asbestos suits
which provided for a class-wide trial of essentially the same phase
I common issues, but to be followed by “consolidated mini-trials of
four to ten plaintiffs on the issues of exposure to any products
6
Fibreboard
In Fibreboard, we found “no impediment to the trial of Phase
I,” id. at 712, but held the balance of the plan invalid, stating:
“It infringes upon the dictates of Erie that we remain
faithful to the law of Texas, and upon the separation of
powers between the judicial and legislative branches.
“Texas has made its policy choices in defining the
duty owed by manufacturers and suppliers of products to
consumers. These choices are reflected in the
requirement that a plaintiff prove both causation and
damage. In Texas, it is a ‘fundamental principle of
traditional products liability law . . . that the
plaintiffs must prove that the defendant supplied the
product which caused the injury.’ These elements focus
upon individuals, not groups. The same may be said, and
with even greater confidence, of wage losses, pain and
suffering, and other elements of compensation. These
requirements of proof define the duty of the
manufacturers.
. . . .
. . . The inescapable fact is that the individual
claims of 2,990 persons will not be presented. Rather,
the claim of a unit of 2,990 persons will be presented.
. . . .
. . . That procedure cannot focus upon such issues
as individual causation, but ultimately must accept
general causation as sufficient, contrary to Texas law.
It is evident that these statistical estimates deal only
with general causation, for ‘population-based probability
estimates do not speak to a probability of causation in
any one case; the estimate of relative risk is a property
of the studied population, not of an individual’s case.’
This type of procedure does not allow proof that a
previously found to be defective; any damages legally caused by
such exposure; and any comparative fault of each plaintiff in
incurring such damages.” Id. at 282. See also id. at 284 (“. . .
the mini-trials preserve the individual issues of product exposure
for each member of the class with regard to each product (if any)
found defective in the class action phase”), and our Jenkins
opinion at 473 (“individual issues of the unnamed class members
would be resolved later in ‘mini-trials’ of seven to ten
plaintiffs.”).
7
particular defendant’s asbestos ‘really’ caused a
particular plaintiff’s disease; the only ‘fact’ that can
be proved is that in most cases the defendant’s asbestos
would have been the cause.” Id. at 711-712 (footnotes
omitted; emphasis added except in interior quotation and
in last clause).9
Present Plan
Following this Court’s decision in Fibreboard, the district
court initially determined that “[t]his case will now proceed under
the procedures set out in Jenkins v. Raymark”——i.e. phase I to be
followed by a series of mini-trials for all plaintiffs on their
individual causation and damage issues (see note 8, supra)——and set
its previously adopted phase I (which we had declined to block) for
trial.10 The court observed that its “task appears to be
insurmountable,” but stated that it would nonetheless “take[] its
place behind the old mule and start down that long row.”
Some months later, however, the court changed its mind and
adopted the trial plan now before us (except that a stipulation was
ultimately utilized instead of phase II), observing:
“Phase One will leave unresolved the questions of
exposure, comparative causation, and damages. These
remaining questions could easily be resolved by the
procedure established in Jenkins if the numbers were
9
We also stated:
“Finally, it is questionable whether defendants’
right to trial by jury is being faithfully honored, but
we need not explore this issue. It is sufficient now to
conclude that Phase II cannot go forward without changing
Texas law and usurping legislative prerogatives, a step
federal courts lack authority to take.” Id. at 712.
10
As its “only modification” to its previous phase I, the
district court provided that “a trial on the merits of the [entire
individual cases of] the class representatives . . . will now be
submitted to the jury in Phase I.”
8
manageable. The numbers are not manageable. Jenkins
envisioned groupings of ten plaintiffs submitted to a
succession of juries. If we could try one group a week,
the process would take 4½ years. Additional judicial
power and the utilization of multiple courtrooms could
shorten the time to resolve all these cases, but it would
not decrease total court time or attorney time.
Transaction costs to the parties under the Jenkins
procedure is unacceptable.”
Instead of utilizing the Jenkins procedure, the court
determined to employ new phases II and III: “asking the jury in
Phase Two to make findings on exposure that are specific to job
site, craft and time; and then by submitting to a jury in Phase
Three individual damage cases of a statistically significant,
randomly selected sample from each of the five disease categories.”
For purposes of phase II, twenty-two different
worksites——principally refineries, shipyards, and chemical plants,
and also including other industrial-type facilities and a power
plant——in Beaumont, Port Arthur, Orange, and Port Neches, Texas, and
including two sites in Lake Charles, Louisiana, would be
considered.11 The district court contemplated that the phase II
jury (the same jury as in phase I) would:
“hear evidence concerning: (a) the presence of the
Defendants’ products at the worksites; (b) the presence
of asbestos dust at the worksites; and (c) the nature of
the various crafts at the worksites and the relationship
between these crafts and the presence of asbestos dust at
these facilities. Specifically, the jury will hear
evidence concerning the working conditions of machinists,
pipefitters, insulators, carpenters, etc. and the
relationship between these workers and the Defendants’
asbestos products. The jury will make a determination as
11
Although two of the twenty-two sites were in Louisiana, the
district court, and all parties both below and on this appeal, have
proceeded on the basis that in this diversity case the controlling
substantive law is that of Texas, and we do likewise.
9
to which crafts at the worksites were exposed to which
Defendants’ asbestos products (if any) for a sufficient
period of time to cause injury, harm, or disease.
The Court will make a non-jury determination as to
which Plaintiffs or Plaintiffs’ decedents worked for a
sufficient period of time at each worksite so as to be a
proper member of that worksite’s group and which
Plaintiffs were proper members of each of the crafts at
these worksites. . . .
The Court will submit the issue of exposure to the
jury pursuant to ten-year intervals. So, for example,
the jury will be asked whether the product(s) of
Defendant X were present at Worksite Y during the 1940's,
the 50's, 60's, etc. And, for example, the jury will be
asked whether the carpenters at Worksite Y were exposed
to Defendant X’s product(s) during the 1940's, the 50's,
60's, etc.
. . . .
During Phase Two, the jury will apportion
responsibility among settling and non-settling Defendants
for the Plaintiffs’ exposure (if any).”
In Phase III, two other juries would determine for 160 sample
cases only “two damage issues,” namely “(e) whether the Plaintiffs
suffered from an asbestos-related injury or disease and, if so, (b)
what damages the Plaintiffs incurred.” The court ultimately
determined, based on information from plaintiffs, that the entire
class of 2,298 cases could be broken down into the 5 disease
categories, and the court then randomly selected 160 sample cases,
some from each disease category, as follows:
Disease Number of Number of
Sample Cases Cases in Class
Mesothelioma 15 32
Lung Cancer 25 186
Other Cancers 20 58
Asbestosis 50 1,050
Pleural Disease 50 972
10
Total 160 2,29812
12
A brief description of asbestos-related diseases is contained
in Schuck, The Worst Should Go First: Deferral Registries In
Asbestos Litigation, 15 Harv. J.L. & Pub. Pol. 541 (1992). Five
conditions are described, “[m]oving from the least to the most
serious,” as follows: “(1) pleural plaque; (2) pleural thickening;
(3) asbestosis; (4) lung and certain other cancers; and (5)
mesothelioma (a rapidly-fatal form of cancer).” Id. at 544. “The
pleurae are a double membrane surrounding the lung between the lung
and chest wall. The inner layer, adjacent to the lung tissue, is
called the visceral pleura. The outer layer, in close contact with
the inner, is called the parietal pleura.” Id., n.10.
“Pleural plaques have been described as ‘discrete,
elevated, opaque, shiny, rounded lesions, . . . diffuse
or nodular,’ of the parietal pleura or diaphragm. They
strongly indicate asbestos exposure. Pleural thickening
includes certain types of lesion of the visceral pleura.
Unlike plaques, pleural thickening may have non-asbestos
causes. Asbestosis involves non-malignant lesions of the
lung tissue itself, varying from small areas of basal
fibrosis to a diffuse, fine fibrosis. . . . Malignant
mesothelioma, a usually rapidly-fatal form of cancer, is
caused almost exclusively by asbestos. Lung cancer can
also be caused by asbestos, a risk greatly compounded by
smoking. Whether asbestos exposure is associated with
other types of cancer remains a matter of considerable
debate in the medical and legal communities.
. . . The medical literature indicates that
claimants with pleural plaques unaccompanied by
asbestosis are ordinarily symptomatically unimpaired.
Some studies have associated pleural plaques with
comparatively modest breathing decrements, but many such
studies have been criticized on various grounds. It is
clear that diffuse pleural thickening and some of its
variants can produce significant impairments, although
thickenings are less common than plaques. Asbestosis
‘[s]ymptoms include shortness of breath, coughing,
fatigue, and vague feelings of sickness. When the
fibrosis worsens, shortness of breath occurs even at
rest. . . . In severe cases, death may be caused by
respiratory or cardiac failure.’
. . . Pleural plaques are certainly markers of prior
asbestos exposure, but the existing studies provide no
evidence that they independently cause any progression of
further asbestos-related conditions. As for asbestosis,
the evidence suggests that once the disease is
contracted, the symptoms tend to become progressively
11
Individual judgment would be entered in each of the 160 sample
cases based on the phase III verdict in that particular sample
case. After phase III, the district court would assign each of the
remaining 2,298 cases to one of the 5 disease categories, and in
each case make an award of actual damages equal to the average of
the awards in the phase III cases involving the same disease.
Phase I
The phase I trial lasted approximately eight weeks. The
defendants then remaining were Carey Canada, Celotex, Fibreboard,
and Pittsburgh Corning.13 The jury found in answer to the first
four questions when the defendants knew or should have known that
their “asbestos-containing insulation products” posed a risk of
asbestos-related disease to “insulators” (question 1), to their
household members, to other “crafts working with or near insulation
products,” and to their household members. Pittsburgh Corning knew
or should have known this since 1962 (when it first entered the
business; it left it in 1972) as to both insulators and other
crafts; the other three defendants since 1935 as to insulators and
since 1955 as to other crafts; all four defendants as to both sets
of household members since 1965. In answer to question 5, the jury
found that, since 1962 as to Pittsburgh Corning and since 1935 as
to the other defendants, the defendants’ listed insulation products
“were defective and unreasonably dangerous as a result of not
more serious with continued occupational exposure. In
some cases, this progression occurs even after exposure
ceases.” Id. at 545-50 (footnotes omitted).
13
As noted, ACL’s case was tried to the court.
12
having an adequate warning.” The district court ultimately
disregarded the answers to questions 2, 3, and 4, which addressed
knowledge concerning other crafts and household members, and
ordered judgment rendered on the basis of question 1, knowledge
concerning insulators, and question 5, failure to warn. In
question 7,14 the jury found each defendant guilty of gross
negligence warranting punitive damages and assigned a punitive
damages multiplier of $3.00 per $1.00 of actual damages to
Pittsburgh Corning, $2.00 to Celotex, and $1.50 each to Fibreboard
and Carey Canada. Questions 8 through 17 separately addressed the
individual case of each of the 10 class representatives. In each
respective question, the jury was asked to find for the particular
plaintiff or the defendants, and if for the plaintiff to find
separate dollar amounts of past and of future damages for that
plaintiff, and to “apportion causation” (in percentages totaling
one hundred percent) among that plaintiff, some or all of the then
current defendants, and some or all of the dismissed former
defendants. In three of the cases, the plaintiff’s causation was
not submitted (in one of these the verdict was for the defendants,
and a new trial was granted), in another three such causation was
submitted but not found, and in four cases plaintiff causation was
found (15%, 17%, 20%, and 50%). In each of the 9 cases in which
the jury found for the plaintiff, Pittsburgh Corning’s causation
was fixed at 20%; Fibreboard and Celotex were each assessed 15% in
8 of these cases, and in one case Celotex was assessed 30% and
14
Question 6 related only to Carey Canada.
13
Fibreboard none; in the only 4 of these cases in which Carey
Canada’s causation was submitted, it was found to be 15%. In each
of these 9 cases, the causation of each of some 10 former
defendants was submitted, separately for each, and it was found in
each case in amounts ranging from as little as a total of 10% for
all of them to as much as 50% for all. The jury’s phase I actual
damage findings totaled some $3.5 million.
Phase III
Following completion of the phase I trial (and a continuance),
the district court proceeded directly into phase III, without any
phase II trial. It was not until approximately seven weeks into
the phase III trials that the stipulation——which ultimately replaced
phase II——was entered into. It was clear from the beginning of, and
throughout, the phase III trials that the two juries were not to,
and did not, determine whether exposure to any of defendants’
products was a cause of the sample plaintiffs’ complained-of
condition. In phase III the court instructed the jury that they
were to assume exposure was sufficient to be a producing cause of
all the disease categories. As plaintiffs admit in their brief
here, in the phase III trial “the juries were told to assume that
the claimants had sufficient exposure.”15 Indeed, for the most part
evidence of exposure and its likely or possible results was not
15
And, in hearings on post-trial motions below, the plaintiffs’
counsel twice expressly agreed with the district court’s assessment
that the court’s “instruction was that the jury was to assume
exposure was sufficient to be a producing cause of all these
diseases.”
14
allowed.16 Simply stated, whether there was exposure to Pittsburgh
16
The district court announced on more than one occasion at the
beginning of the phase III trials, “[w]e are not going to try 160
cases of individual exposure.” Plaintiffs’ counsel informed the
district court post-trial——and defense counsel concurred——”[w]e were
not allowed to litigate exposure during Phase 3. When we tried the
individual cases, we were not allowed to litigate exposure,” and
“we were prohibited in Phase 3 from proving exposure either to
Pittsburgh Corning’s products or exactly when the decades of
exposure were or how much they were.” As the district court noted
in one of its post-trial orders, “the parties did not litigate
during the ‘Phase Three’ trials the duration and extent of exposure
to asbestos by each of the 160 individual plaintiffs,” and
“[e]vidence quantifying how much exposure was not allowed in
individual cases unless the issue of smoking was raised,” and “the
‘Phase Three’ trials did not involve litigation of individual
exposure, periods and duration.” Evidence of exposure was limited
to lung cancer and certain other cancer cases where smoking was
raised, essentially consisted of showing the number of years of
asbestos exposure, and was not product or defendant specific. At
the beginning of the phase III trials, the court instructed the
juries they would:
“not hear evidence concerning which product they might
have been exposed to or how much exposure they might have
had. Or which product they used more than others.
For most of these cases, you may assume that there
has been sufficient exposure to asbestos-containing
insulation products for that exposure to be a producing
cause of an asbestos-related injury or disease.
Now, therefore, it will not be necessary for you to
hear any evidence about the quantity or amount of
exposure in most of these cases. There is a category
that I wish to address separately with you.
It is not scientifically disputed that in lung
cancer cases, there are two causes of lung cancer, of the
types of lung cancer that we have that are the subject of
claims in this case. And those two causes are exposure
to asbestos fibers and smoking.
Therefore, I have ruled that it is appropriate for
you to hear evidence on the lung cancer category of cases
that relates to quantification of exposure.
. . . .
You may assume that there was a sufficient exposure for
15
Corning’s——or any other defendant’s——asbestos, and, if so, whether
that exposure was a cause of any of the 160 sample plaintiffs’
illness, disease, or damages, was neither litigated nor determined
in any of the phase III trials. Nor were any matters concerning
any individual sample plaintiff’s past connection with any
particular worksite or craft either litigated or determined in
phase III (although some miscellaneous information in this regard
was not infrequently incidentally reflected in general background
or work history testimony).
Following the phase III jury verdicts (including 12 zero
verdicts) in the 160 sample cases, the district court ordered
remittiturs in 35 of these cases (“34 of the pulmonary and pleural
cases and in one mesothelioma case”), and calculated the average
actual damage award, after remittitur (and considering the zero
verdicts), in each disease category to be the following:
mesothelioma, $1,224,333; lung cancer, $545,200; other cancer,
$917,785; asbestosis, $543, 783; pleural disease, $558,900. These
that exposure to be a producing cause of an asbestos-
related injury or disease on the damage question.
Now, you may very well have, as I told you -- I
guess it was Tuesday -- a dispute about a diagnosis in
some cases. And I am going to permit in those cases you
to hear evidence about amounts of exposure compared, for
example, to amounts of smoking, so you can decide one way
or the other.
And you will hear evidence -- it is not disputed
scientifically -- that for lung cancer cases, probably
laryngeal cancer cases and maybe some other cases that
fall in that category of, quote, “other cancers,” that
there’s a synergistic effect between smoking and asbestos
exposure.”
16
were the figures to be applied to the extrapolation cases.
Phase II stipulation
We now turn to the written stipulation——entered into after some
seven weeks of the phase III trials had taken place——which replaced
phase II. It was executed by all the plaintiffs and by Pittsburgh
Corning, Fibreboard, and Celotex, who constituted all the then-
remaining defendants (except ACL, whose case was non-jury), and was
approved “so ordered” by the district court.
Attached to the stipulation as an exhibit was a special
verdict form that would consist of separate interrogatories, each
with a part (a) and a part (b), one each for each of the twenty-two
worksites at issue. For example, question 1(a) would ask “For
Worksite No. 1, do you find that the following crafts had
sufficient exposure to asbestos during the specified time periods
to be a producing cause of the disease of asbestosis.”17 The jury
would answer yes or no separately as to each of over fifty listed
crafts for each of four specified decades, namely 1942-52, 1952-62,
1962-72, and 1972-82.18 Question 1(b) would state, “For the crafts
17
It appears undisputed that exposure sufficient to cause
asbestosis is also sufficient to cause mesothelioma, lung cancer,
and pleural plaques.
18
The crafts were divided into four general groupings:
“Production Crafts” (some thirteen in all, including e.g. pumper,
gauger, and tube cleaner and various railyard crafts, including
brakeman and engineer); “Maintenance Crafts” (eighteen, including
boilermaker/steamfitter, insulator, machinist, brick mason, heavy
equipment operator, and welder); “Shipyard” (thirteen, including
rigger, ship fitter, laborer, electrician, carpenter, insulator,
machinist, and pipefitter); and “GSU Powerhouses” (one of the
twenty-two sites) (eleven, including operator, electrician,
pipefitter, heavy equipment operator, and insulator). Of the
plaintiffs involved in this suit, only a very small minority were
17
and the time periods which were answered ‘yes’ in question 1(a),
causation is apportioned as follows.” This question would be
answered by stating separately for each listed craft a percentage
applicable to each of the current defendants and each of the former
defendants who had settled as to each of the same four decades (as
to each decade the percentages were to total one hundred percent).19
This process would be repeated, with questions 2(a) and 2(b), 3(a)
and 3(b), and so forth, separately as to each of the remaining
worksites.
The stipulation provides in part that:
“(3) It is stipulated that some individuals working
in the listed crafts . . . at the 22 Phase Two worksites
during each decade from 1942 to 1982 were exposed to
asbestos during the course of their employment. The
exposure of some members of each of the crafts . . . at
the 22 worksites was of sufficient length and intensity
insulators.
19
Thus, for example, the verdict form would allow the jury to
find in its answer to question 1(a) that at worksite No. 1 the
production “craft” of “operator” had “sufficient exposure to
asbestos to be a producing cause of the disease of asbestosis
during” each of the 1962-72 and 1972-82 decades, but not during
either the 1942-52 or the 1952-62 decades. Again for example, the
jury, assuming it had made the answers to question 1(a)
hypothesized in the preceding sentence, would be able in answer to
question 1(b) to apportion “causation” with respect to the
production “craft” of “operator” at worksite No. 1 during the
decade 1962-72, say twenty percent to Pittsburgh Corning, twenty
percent to Fibreboard, fifteen percent to Celotex, and specific
percentages (presumably including zero) severally to each of the
former defendants who had settled, all such percentages to total
one hundred percent for that particular decade; “causation”
percentages with respect to the production “craft” of “operator” at
worksite No. 1 would similarly be assigned to each current
defendant and former defendant for the decade 1972-82, but such
percentages could be different from those stated for them
respectively for the 1962-1972 decade (or the percentages could
remain the same as between the decades), and, again, the
percentages would total one hundred percent.
18
to cause pulmonary asbestosis of varying degrees.
Asbestos-containing products of predecessors to the
Celotex Corporation and Fibreboard Corporation were
present during each decade in the specified worksites.
An asbestos-containing product of Pittsburgh Corning
Corporation was present during the decades 1962-1982 at
the specified worksites.
The defendants do not stipulate that any members of
the various crafts at the various worksites had the same
exposure to any products or that any such individuals had
the same susceptibility to asbestos-related diseases in
the various crafts and worksites.” (Emphasis added).
The stipulation further provides that, although “[i]f the
Court were to proceed with ‘Phase Two’ . . . [i]t is stipulated for
purpose of appellate review that the [phase II] jury’s verdicts
would assign different [causation] percentages to each” of the
defendants Pittsburgh Corning, Fibreboard, and Celotex, and “would
assign different percentages with respect to each Phase Two
worksite . . . craft . . . and decade combinations” submitted,
nevertheless “[defendants] stipulate it shall be deemed that the
Phase Two jury” assigned in all instances the following comparative
causation shares, viz: Pittsburgh Corning, ten percent;
Fibreboard, ten percent; Celotex, ten percent; and Manville
Personal Injury Settlement Trust, thirteen percent.20 The court
20
As Pittsburgh Corning did not produce or sell asbestos-
containing insulation products before 1962, special provisions were
made concerning it. “If an individual did not have exposure to
asbestos after July 1, 1962, Pittsburgh Corning Corporation will be
assessed no percentage responsibility.” And, “[i]f the Cimino
trial management plan is affirmed on appeal and . . . [the cited
percentage provisions] become operative, the percentage to be
applied to Pittsburgh Corning Corporation shall be reduced
according to the following formula.” This formula provided that in
each individual plaintiff’s case, Pittsburgh Corning’s causation
share would be the same fraction of ten percent as the number of
the Pittsburgh Corning decades (1962-72; 1972-82) during which that
19
would use these stated percentages to fashion judgments in the 160
phase III sample cases and in the extrapolation cases.
Before setting out these percentages, however, the stipulation
had made clear that defendants were not thereby agreeing that the
trial plan——either the originally planned phase II or the
contemplated extrapolation procedure——was a permissible way to
adjudicate their liability and damages. Thus, it stated:
“This stipulation relates to the percentage findings
to be supplied through the Court’s special verdict form
which the Court intends to apply to individuals pursuant
to the Cimino trial management plan, to which these
defendants object. If the reviewing courts reject
determination of individual legal causation issues by
resort to general Phase Two worksite/craft findings, or
reject the use of Rule 23 class trials for asbestos
injury cases, the Phase Two share percentage findings
specified below are void.” (Emphasis added).
individual was exposed to asbestos was of the total number of the
inquired-about decades (1942-52; 1952-62; 1962-72; 1972-82) during
which that individual was exposed to asbestos. Thus, if an
individual had been exposed to asbestos in each of the decades
1962-72 and 1972-82, but not in any other of the four decades,
Pittsburgh Corning’s causation share would be 10% (2/2 x 10); if
the individual had been exposed to asbestos in each of the three
decades 1952-62, 1962-72, and 1972-82, but not in the 1942-52
decade, Pittsburgh Corning’s share would be 6 2/3% (2/3 x 10); if
the individual was exposed in all four decades, Pittsburgh
Corning’s share would be 5% (2/4 x 10); if the individual was
exposed in each of the decades 1942-52, 1952-62, and 1962-72, but
not in the 1972-82 decade, Pittsburgh Corning’s share would be 3
1/3% (1/3 x 10). The district court subsequently ruled that these
decades were 1/1/1942 through 12/31/1951, 1/1/1952 through
12/31/1961, 1/1/1962 through 12/31/1971, and 1/1/1972 through
12/31/1982, and that exposure at any time during the decade
sufficed, that is, for example, exposure from December 1, 1961,
through January 31, 1972, but not thereafter, was exposure in each
of the three decades ending 12/31/82. For these purposes, exposure
to asbestos was not limited to exposure at one of the twenty-two
worksites; thus one extrapolation plaintiff was judged to have been
exposed during all four decades, although it is evident that the
court found none of his exposure prior to 1964 was at any of those
twenty-two sites.
20
Defendants’ reservations of their objections in this respect are
also reflected in later passages of the stipulation. In paragraph
5 it is stated that “Defendants continue to object to these
extrapolation procedures,” and paragraph 8 states:
“Defendants reserve all rights to object to all past and
future aspects of the Cimino trial plan and to assign as
error all prior, present, and future rulings of the
Court, except only that Defendants shall not assert that
the evidence is or would be insufficient to support a 10%
finding (as compared, e.g., to a 5% finding, etc.) with
respect to any particular Phase Two jobsite and craft
combination.”
And, the stipulation recites that defendants specifically reserved,
and would be afforded, the right to contend on appeal21 the
following (among other things):
“that it is impermissible to determine medical or other
causal responsibility on a jobsite or craft-wide basis;
that it is impermissible to establish a single period of
time sufficient to cause asbestos related disease, injury
or harm except in connection with evidence presented in
regard to an individual and as applied to that
individual; that it is impermissible to use decades of
exposure to asbestos, worksite or employment status to
assess individual exposure or medical causation issues;
and that it would be impermissible under governing law to
assign a single percentage of ‘causation’ or
‘responsibility’ to a particular craft or job
classification.”22
21
And to submit offers of proof to the district court
concerning.
22
The stipulation also says that “[i]t is understood by the
Court, and it is agreed by the parties, that Defendants do intend
to challenge all aspects of the Cimino trial management plan
including all aspects of the Phase Two trial which would culminate
in use of the special verdict form.” Finally, paragraph 15 of the
stipulation states:
“The District Court is of the view, and the parties
stipulate, that no appellate rights are prejudiced or
waived by entering into this stipulation, and that no
reviewing court should construe this stipulation as being
21
Paragraph 12 of the stipulation confirms its limited nature,
viz:
“(12) Without limitation, Defendants do not
stipulate that: entry of any judgment based on actual or
stipulated Phase Two findings is legally or factually
sound; any Defendant in fact has legal responsibility to
any individual plaintiff; any individual plaintiff was in
fact exposed to injurious quantities of asbestos from the
products of any Defendant; the products of any of the
Defendants were in fact legal causes of injury to any
individual plaintiff; or that any issue framed by the
Cimino pleadings can be adjudicated on a jobsite or
craft-wide basis. Defendants have not stipulated or
agreed that evidence to be received under the Cimino
trial management plan is or could be sufficient to
establish in these cases that any class member plaintiff
suffers from an asbestos-related disease (except as
previously stipulated on the record in particular cases),
or that the asbestos-containing product or products of
any defendant caused or contributed to any such disease,
nor that a finding of responsibility or causation in any
percentage with respect to a defendant and any class
member is or could be sustained by evidence limited to
asbestos-related disease among, or exposure to asbestos
of, members of specified crafts at specified worksites
over ten-year periods of time in the absence of evidence
sufficient to show that each plaintiff class member to
whom a defendant is held liable in any percent himself or
herself has an asbestos-related disease and that such
class member was exposed to the defendant’s asbestos
product or products in quantities and for times
sufficient to cause such disease. Further, defendants
have not stipulated to the sufficiency of any evidence
which would permit any finding by the Court or jury that
any class member plaintiff has been damaged in any sum or
amount by reference or resort to damages suffered by any
other plaintiff, or groups of plaintiffs, in the absence
of evidence specifically showing damage suffered by such
plaintiff class member himself or herself individually.”
(Emphasis added).
Finally, the stipulation reflects that the court, by its
an agreement by the parties to any part of the Cimino
trial management plan, or to the trials that have
occurred as of the date of this stipulation, or to
further implementation of Cimino procedures by the
Court.”
22
approval thereof, had ruled, and “would have adhered to such ruling
throughout the trial” and “will adhere to this ruling in reviewing
offers of proof” mentioned in the stipulation, that, with presently
immaterial exceptions,
“. . . it would not submit to the jury for a verdict (or
receive individual evidence for individual adjudication)
as to each plaintiff class member except where it has
done so in proceedings to date, several issues,
including: whether he or she was exposed to an asbestos-
containing product; whether that exposure was sufficient
to cause injury; the identity of those who manufactured
the products to which such each plaintiff was exposed;
and the individual damages suffered by such person as a
result of exposure.”
After the stipulation, the phase III trials continued for
approximately five more weeks, conducted in all material respects
on the same basis and in the same manner as they had been during
the some seven weeks before the stipulation was entered into.
Extrapolation
The final phase was that of extrapolation. About a month
after completion of the phase III trials, a one-day non-jury
hearing was held in which the district court heard evidence
concerning the degree to which the 160 sample cases were
representative, in their respective disease categories, of the
cases in the same disease category among the 2,128 extrapolation
cases. Essentially the only evidence at this hearing was the
testimony of three expert witnesses called by the plaintiffs,
namely Dr. John Dement, Director, Office of Occupation Health and
Technical Services, National Institute of Environmental Health
Sciences; Professor Ronald Frankewitz of the University of Houston,
a Ph.D. in Evaluation, Measurement, and Statistics; and University
23
of Texas Law School Professor of Trial Practice Patrick Hazel, an
experienced personal injury trial lawyer.
The district court’s opinion dealing with extrapolation does
not refer, either generically or specifically, to any evidence
other than Professor Frankewitz’s testimony. He stated that he was
furnished by someone in the offices of plaintiffs’ counsel
computerized written data reflecting, as to each of the 160 sample
cases and each of the 2,128 extrapolation cases, whether the case
was a sample case or an extrapolation case, which of the 5 disease
categories the case involved, and an answer to each of 12 specific
variables pertaining to the particular plaintiff or plaintiff’s
decedent alleged injury to whom formed the basis of the suit. The
12 variable were gender, race, whether living, whether ever smoked,
whether was a wage earner (when not specified), age, first year of
exposure, last year of exposure, total years of exposure, latency,
pack years smoked, trade and predominant craft. Professor
Frankewitz testified that the sample cases in each of the five
disease categories were representative of the extrapolation cases
in the same disease category “in terms of the variables that I’ve
analyzed,” so that, for example, if one were to randomly select
another 50 asbestosis cases from the 2,128 extrapolation cases, 99
out of 100 times (98 out of 100 in two minor respects) those 50
cases would have “the same mix of variables” as the 50 asbestosis
cases which were a part of the 160 sample phase III cases.23 Dr.
23
Professor Frankewitz had no information as to any of the
verdicts in any of the phase III sample cases, “made no attempt .
. . to correlate or to identify any results or factors . . . that
24
Frankewitz did not select the variables, nor did he determine what
those variables were in any of the cases; rather he was simply
furnished that information by plaintiffs’ counsel’s office.
Similarly, he made no independent judgment as to which disease
category any case fit in, but simply was furnished that conclusion
by the office of plaintiffs’ attorneys. And Dr. Frankewitz was
even not sure just what some of the variables meant. When asked
what the variable “total years of exposure” meant, he repled “As
far as I’m concerned, I believe it’s . . . I’d be guessing. I
would say it’s the number of years that an individual was exposed
to asbestos in a particular setting, particular situation” (earlier
in his testimony he had indicated that it was “a function of” first
and last years of exposure). He did not calculate “total years of
exposure” and when asked who did, said “My belief would be it would
be a clerk under the supervision or direction of one of the
plaintiffs’ attorneys.”24 The district court concluded “that the
distribution of variables between the samples and their respective
would predict or estimate what jury awards might be,” and stated
that “none of what I have done . . . related to magnitude of
verdicts.”
24
Similarly, when asked “what criteria were used to determined
who was a wage earner,” Dr. Frankewitz replied “Again, this was
information that was encoded and afforded to me.” When asked
whether the wage earner variable “is equivalent in some fashion to
whether or not a wage-lost claim was asserted,” he responded “I
don’t know what we’re talking about there. I have no knowledge of
that terminology. I’m operating on the basis of merely a
categorical variable, sir, whether a person was classified as a
wage earner or not.”
25
subclasses is comparable.”25
25
Defendants unsuccessfully objected to Professor Frankewitz’s
testimony on the basis that his testimony as to the presence and
distribution of the different variables depended entirely on what
he was told by employees of plaintiffs’ attorneys. In an effort to
respond to this, and to a similar unsuccessful objection to Dr.
Dement’s testimony, plaintiffs, well after the extrapolation
hearing and the orders initially entered on the basis thereof,
moved to place of record the answers of all class members to
Fibreboard and Master interrogatories, which they asserted were the
ultimate source of the “variables” and disease data furnished
Frankewitz and Dement. The district court denied the motion,
stating that these answers “were neither offered nor admitted into
evidence at trial. Fed. R. Civ. P. 33 requires a formal offer of
answers to interrogatories at trial. Jones v. Diamond, 519 F.2d
1090, 1098 and n.13 (5th Cir. 1975); 4A Moore’s Federal Practice §
33.29(1.-2).” The plaintiffs’ interrogatory answers are not in the
record before us. Apparently for the same reason (and also in
reference to prejudgment interest), plaintiffs also filed (well
after the extrapolation hearing) a motion and supplemental motion
to take judicial notice of the years of last exposure of each
plaintiff (relying on their referenced interrogatory answers). The
district court likewise denied those motions.
Dr. Dement concluded that from an epidemiological point of
view the distribution of certain important “risk factors” in each
disease category in the 160 phase III sample cases was very
comparable to or representative of the distribution of those same
factors in the like disease category cases among the extrapolation
cases. The “factors” were age, race, sex, whether or not the
individual ever smoked (at least in some disease categories), the
year of first exposure (year of last exposure was not considered),
and the length of time from first exposure to the initial diagnosis
(latency period). A final factor was to characterize the
individual’s “predominant work site” (site of longest employment)
as having been in one of six different generic types, namely
“refinery, chemical plant, shipyards, construction and trades,
household exposure, and a group sort of catch-all other.” This
factor also asked as to each of these six generic types of work
sites whether the individual had or had not ever worked at such a
site. Concerning the some 2,128 extrapolation cases, Dr. Dement
was furnished by personnel in the office of plaintiffs’ counsel the
answer as to each individual to each of the above “factors” as well
as the appropriate disease category for that individual. Dr.
Dement did not make any review of any of those 2,128 cases and
relied entirely on the referenced answers furnished by the office
of plaintiffs’ counsel. He did state that whether or not an
individual was exposed to asbestos at a work site was not a
criteria in determining the individual’s “predominant work site”
and “we have no exposure information, to my knowledge, or very
little at most of these work sites.” However, in general
26
refineries, chemical plants, and shipyards were a source of
asbestos exposure. Dr. Dement acknowledged that since 1970 there
was likely some decrease in industrial asbestos exposure, but that
in some instances “there was some deterioration in plant
operational maintenance conditions that would cause increases.” He
also stated that “it [the 2,128 cases] is of a very mixed work
history population. Many of these individuals worked in many, many
different places.” Dr. Dement likewise acknowledged that his
“analysis was strictly the risk factors for the disease not in the
level of any disability,” and that the risk factors simply related
to “increased risk and you cannot predict on any individual basis
whether or not . . . he’s going to develop lung cancer or
asbestosis or not.”
Professor Hazel testified that in personal injury cases
generally (he had never had an asbestos case) the main factors
important to evaluation for settlement purposes were the potential
for liability for actual or punitive damages, the extent of the
plaintiff’s injury, the venue or forum (the particular jury
selected if settled at that stage), the quality of the opposite
party’s legal representation, the defendant’s ability to pay, and
“the host of other factors I would call the plaintiff’s
characteristics . . . what is the appearance this plaintiff is
likely to make? What kind of presentation in front of the jury is
this plaintiff likely to make?” Professor Hazel looked at the
verdicts in the 160 sample phase III cases and also at some of the
evidence in some of those cases; he did not do any review of any of
the extrapolation cases. He received information from some of the
plaintiffs’ lawyers regarding what they thought were “pluses” and
“minuses” in their sample phase III cases, and stated that smoking
was a reported negative, as was age in some instances and “whether
the jury won’t like him or her”; while no one had had “ten years”
in prison, there were instances counsel “said here’s something we
know but the other side doesn’t know.” Most of the things
plaintiffs’ counsel reported “as the positives and the negatives”
would fit into Hazel’s classification of “plaintiff’s
characteristics.” Reviewing memos from defense counsel concerning
possible settlement of these cases, Hazel noted (over defense
objections) that they mentioned disease classifications, smoking
(in lung cancer cases only), whether or not over age 60 (or 65),
and what Hazel assumed was job impairment; other than smoking they
did not “appear to consider . . . the individual characteristics of
any Plaintiff.” In reviewing the verdicts rendered in the phase
III cases, Hazel “was struck” by the difference in verdicts as
between the two different juries that tried those cases. Hazel
recognized that attorneys generally value pleural cases with “the
lowest evaluation” of all asbestos-related disease classifications,
and noticed this pattern had not been followed in the phase III
verdicts, but had no explanation for that. Indeed, the average
phase III pleural verdict exceeded both the average asbestosis and
the average lung cancer verdict by more than $10,000 (after
27
2. Analysis
As noted, Pittsburgh Corning attacks the Cimino trial plan, as
it did at all times below, principally on the basis that it fails
to properly try and determine individual causation, and in the
extrapolation cases also fails to properly try and determine
individual damages, as to any plaintiffs other than the ten class
representatives whose individual cases were fully tried in phase I.
Pittsburgh Corning asserts in this connection, among other things,
that these aspects of the trial plan are contrary to Fibreboard,
impose liability and damages where they would not be imposed under
Texas substantive law, and invade its Seventh Amendment and due
process rights. Although we do not separately address the due
process contention as such, we conclude that the Cimino trial plan
is invalid in these respects, necessitating reversal of all the
phase III sample case judgments as well as the five extrapolation
case judgments before us.26
remittitur and including zero verdicts). Hazel had no information
on the range of injury involved in the phase III pleural cases; nor
had he ever before seen or studied a situation where one particular
jury repeatedly returned separate verdicts in a long series of
cases.
26
At approximately the conclusion of the phase I trial, and
well before phrase III began, a motions panel of this Court issued
an order denying a petition for writ of mandamus filed by
Fibreboard challenging the trial plan. The order was without
opinion (it merely recited “It is ordered that the petition for
writ of mandamus is denied”). It is settled that the motions panel
order is not binding on us. See, e.g., Mattern v. Eastman Kodak
Co., 104 F.3d 702, 704 (5th Cir. 1997), cert. denied, 118 S. Ct. 336
(1997); Browning v. Navarro, 887 F.2d 553, 557 (5th Cir. 1989),
28
We begin by stating some very basic propositions. These
personal injury tort actions for monetary damages are “a
prototypical example of an action at law, to which the Seventh
Amendment applies.” Wooddell v. Intern. Broth. of Elec. Workers,
112 S. Ct. 494, 498 (1991). The Seventh Amendment applies
notwithstanding that these are diversity cases. Simler v. Conner,
83 S. Ct. 609 (1963). See also Gasperini v. Center for Humanities,
Inc., 116 S. Ct. 2211 (1996). But because these are diversity
cases, the Rules of Decision Act, 28 U.S.C. § 1652, and Erie R. Co.
v. Tompkins, 58 S. Ct. 817, 822-23 (1938), with its seeming
constitutional underpinning, mandate that the substantive law
applied be that of the relevant state, here Texas. Substantive law
includes not only the factual elements which must be found to
impose liability and fix damages, but also the burdens of going
forward with evidence and of persuasion thereon. Palmer v.
Hoffman, 63 S. Ct. 477, 482 (1943); Cities Service Oil Co. v.
Dunlap, 60 S. Ct. 201 (1939).
None of the foregoing is or can be altered by the utilization
of Fed. R. Civ. P. 23(b)(3) or Fed. R. Civ. P. 42(a). As to the
Seventh Amendment, the Court in Ross v. Bernhard, 90 S. Ct. 733
(1970), held that in a stockholders’ derivative action seeking
monetary relief——now provided for in Fed. R. Civ. P. 23.1——although
the right of the stockholders to sue on behalf of the corporation
was an equitable matter determinable by the court, the monetary
reh’g denied, 894 F.2d 99 (5th Cir. 1990); Northshore Development
Co. v. Lee, 835 F.2d 580, 583 (5th Cir. 1988) (“a motions panel
decision is not binding precedent”).
29
claims of the corporation against the defendants were legal claims
to which the Seventh Amendment applied. The Court observed that
“The Seventh Amendment question depends on the nature of the issue
to be tried rather than the character of the overall action,” id.
at 738, and “nothing turns now upon the form of the action or the
procedural devices by which the parties happen to come before the
court.” Id. at 739. It also noted that it was “inclined to agree
with the description” of derivative suits “as one kind of ‘true’
class action,” and that “it now seems settled in the lower federal
courts that class action plaintiffs may obtain a jury trial on any
legal issues they present.” Id. A leading text gives the
following commentary on Ross:
“The language just quoted, that nothing turns on
‘the procedural devices by which the parties happen to
come before the court,’ makes the Ross case controlling
not only for derivative actions but also for the other
procedural devices that the Civil Rules borrowed from
equity. In all of these it will be for the judge to
decide whether the device may be used, but once he or she
does so there will be a right to jury trial on any of the
underlying issues that are legal in nature. Indeed, the
Ross decision itself relied in part on lower court
decisions reaching this result with regard to class
actions under Rule 23. The Court said that ‘it now seems
settled in the lower federal courts that class action
plaintiffs may obtain a jury trial on any legal issues
they present,’ and indicated its agreement with the view
that derivative suits are one kind of ‘true’ class
action.” 9 Wright & Miller, Federal Practice and
Procedure, § 2307 at 79 (footnotes omitted).27
27
Indeed, the instant case is clearly a fortiori of Ross. In
Ross, the Court was dealing with an action——a stockholders’
derivative suit——which was historically equitable and which was
fairly described as a “true” class action. Here we are dealing
with tort personal injury damage suits, historically the
quintessential legal action for Seventh Amendment purposes, and
with a Rule 23(b)(3) class action which, at least in the personal
injury damage suit context, has no equitable antecedents and is not
30
And, this Court has long held that the applicability of the Seventh
Amendment is not altered simply because the case is Rule 23(b)(3)
class action. State of Alabama v. Blue Bird Body Co., Inc., 573
F.2d 309, 318 (5th Cir. 1978).28
Similarly, use of Rule 23(b)(3) or 42(a) does not alter the
required elements which must be found to impose liability and fix
damages (or the burden of proof thereon) or the identity of the
substantive law——here that of Texas——which determines such elements.
We squarely so held in Fibreboard. And the rules enabling act, 28
U.S.C. § 2072 likewise mandates that conclusion.29 As we said in
Blue Bird Body Co.:
“This Circuit has also explained that the meaning of
liability for antitrust purposes does not change simply
because a trial is bifurcated under Fed. R. Civ. P.
a “true” but rather a “spurious” class action.
We also observe that the passing reference in Ross’s footnote
10 to “the practical abilities and limitations of juries” has been
explained by the Court as referring to one of the criteria to be
used in assessing, under the “public rights” doctrine, “whether
Congress has permissibly entrusted the resolution of certain
disputes to an administrative agency or specialized court of
equity, and whether jury trials would impair the functioning of the
legislative scheme.” Granfinanciera, S.A. v. Nordberg, 109 S. Ct.
2782, 2790 n.4 (1989). See also Wright, Law of Federal Courts (5th
ed.), § 92 at 658-59.
28
Further, Fed. R. Civ. P. 38(a) provides that: “The right of
trial by jury as declared by the Seventh Amendment to the
Constitution or as given by a statute of the United States shall be
preserved to the parties inviolate.” The original advisory
committee notes reflect that: “This rule provides for the
preservation of the constitutional right of trial by jury as
directed in the enabling act . . . .” See also Fed. R. Civ. P.
42(b) (“. . . always preserving inviolate the right of trial by
jury as declared by the Seventh Amendment to the Constitution or as
given by a statute of the United States”).
29
As do also Erie and the Rules of Decision Act in diversity
cases.
31
42(b). In Response of Carolina, Inc. v. Leasco Response,
Inc., 537 F.2d 1307 (5th Cir. 1976), this court stated
that there was ‘no basis in law or logic to give
liability different meanings depending upon the trial
procedure used.’ Id. at 1321. The Leasco opinion
explained that bifurcation in no way diminishes the
requirement that a plaintiff show some evidence that a
violation caused him injury before a defendant is found
liable.
. . . .
Just as the meaning of liability does not vary
because a trial is bifurcated, the requisite proof also
in no way hinges upon whether or not the action is
brought on behalf of a class under Rule 23. It is
axiomatic that a procedural rule cannot ‘abridge,
enlarge, or modify any substantive right.’ [citing 28
U.S.C. § 2072] Consequently, this court has no power to
define differently the substantive right of individual
plaintiffs as compared to class plaintiffs.” Id. at 317-
318 (footnote omitted; emphasis added).30
30
See also id. at 327:
“The holding in Shumate [Shumate & Co. v. Ntl.
Ass’n, 509 F.2d 147 (5th Cir. 1975)] affirming the
district court’s denial of a class certification is a
recognition by this court that the fact that a case is
proceeding as a class action does not in any way alter
the substantive proof required to prove up a claim for
relief. The holding is also a recognition that ‘impact’
is a question unique to each particular plaintiff . . .
.”
Similarly, the en banc Fourth Circuit stated in the anti-trust
class action case of Windham v. American Brands, Inc., 565 F.2d 59,
66 (4th Cir. 1977)——which we cited with approval in Blue Bird Body
Co., n.20——as follows:
“While a case may present a common question of violation,
the issues of injury and damage remain the critical
issues in such a case and are always strictly
individualized.
. . . .
Generalized or class-wide proof of damages in a private
anti-trust action would, in addition, contravene the
mandate of the Rules Enabling Act that the Rules of Civil
Procedure ‘shall not abridge, enlarge or modify any
32
Nor is deviation from these settled principles authorized
because these are asbestos cases whose vast numbers swamp the
courts. Fibreboard clearly so holds. So, also, in Jackson v.
Johns-Manville Sales Corp., 750 F.2d 1314 (5th Cir. 1985), cert.
denied, 106 S. Ct. 3339 (1986), a diversity asbestos case arising in
Mississippi, we declined to adopt a federal common law rule for
asbestos cases (or to certify to the United States Supreme Court
whether to do so), stating:
“. . . [U]nder our federal system Congress is generally
the body responsible for balancing competing interests
and setting national policy. There is no doubt that a
desperate need exists for federal legislation in the
field of asbestos litigation. Congress’ silence on the
matter, however, hardly authorizes the federal judiciary
to assume for itself the responsibility for formulating
what essentially are legislative solutions. Displacement
of state law is primarily a decision for Congress, and
Congress has yet to act. . . .” Id. at 1327.
When, after Fibreboard, the district court adopted the present
trial plan, it initially justified doing so on the basis of its
conclusion that “the Texas Supreme Court, if faced with the facts
of this case, would apply a collective liability theory, such as
the Court’s plan, to an asbestos consolidated action.”31 The court
based this conclusion on a passage in Gaulding v. Celotex Corp.,
772 S.W.2d 66, 71 (Tex. 1989), stating “We are not to be construed
substantive right.’” (Footnotes omitted).
31
As previously observed, after Fibreboard the district court
at first determined to follow the Jenkins multiple mini-trials
format (see note 8, supra), but some months later changed its mind
and devised the present plan; the quoted language comes from the
latter opinion-order. It may also be noted that in its final
published opinion in this matter, Cimino, 751 F. Supp. 649, the
district court does not again advert to the idea that Texas would
apply some sort of collective liability theory.
33
as approving or disapproving alternative liability, concert of
action, enterprise liability, or market share liability in an
appropriate case.” We are compelled to reject the district court’s
conclusion for each of several independently sufficient reasons.
To begin with, it is contrary to Fibreboard, which plainly holds
that under Texas substantive law causation of plaintiff’s injury by
defendant’s product and plaintiff’s resultant damages must be
determined as to “individuals, not groups.”32 Fibreboard’s
determination of Texas law is precedent which binds this panel.
See, e.g., F.D.I.C v. Abraham, 137 F.3d 264, 268-69 (5th Cir.
1998); Broussard v. Southern Pacific Transportation Company, 665
F.2d 1387, 1389 (5th Cir. 1982) (en banc). Gaulding furnishes no
basis to depart form Fibreboard because it was quoted and relied on
32
Thus, we held in Fibreboard:
“Texas has made its policy choices in defining the duty
owed by manufacturers and suppliers of products to
consumers. These choices are reflected in the
requirement that a plaintiff prove both causation and
damage. In Texas, it is a ‘fundamental principle of
traditional products liability law . . . that the
plaintiffs must prove that the defendant supplied the
product which caused the injury.’ [citing Gaulding]
These elements focus upon individuals, not groups. The
same may be said, and with even greater confidence, of
wage losses, pain and suffering, and other elements of
compensation.” Id. at 711 (footnotes omitted; emphasis
added).
See also id. at 711-712, invalidating procedure because it “cannot
focus upon such issues as individual causation, but ultimately must
accept general causation as sufficient, contrary to Texas law” and
“it does not allow proof that a particular defendant’s asbestos
‘really’ caused a particular plaintiff’s disease; the only ‘fact’
that can be proved is that in most cases the defendant’s asbestos
would have been the cause.” Id. at 712 (footnote omitted; original
emphasis).
34
therein. Fibreboard at 711, n.4. No Texas appellate decision or
statute subsequent to Fibreboard casts doubt on the correctness of
its reading of Texas law. In the second place, even were we not
bound by Fibreboard we would reach the same conclusion it did,
namely that under Texas personal injury products liability law
causation and damages are determined respecting plaintiffs as
“individuals, not groups.” We know of no Texas appellate decision
which in that or a similar context has even approved of in dicta,
much less adopted, the theories of “alternative liability, concert
of action, enterprise liability, or market share liability” which
Gaulding states it was not “approving or disapproving.” Id. at 71.
“We have long followed the principle that we will not create
‘innovative theories of recovery or defense’ under local law, but
will rather merely apply it ‘as it currently exists.’” Johnson v.
Sawyer, 47 F.3d 716, 726 (5th Cir. 1995) (en banc) (citations
omitted). Consistent with that principle, we have on more than one
occasion expressly refused to hold that Louisiana would apply a
market share liability theory to asbestos personal injury claims,
where no Louisiana appellate decision had either done so or
declined to do so. Thompson v. Johns-Manville Sales Corp., 714
F.2d 581, 583 (5th Cir. 1983) (refusing to hold that Louisiana
would adopt either “enterprise” or “market share” liability; noting
“[b]oth theories represent radical departures from traditional
theories of tort liability” and “[s]uch departures are for the
Louisiana courts, not for us”); Bateman v. Johns-Manville Sales
Corp., 781 F.2d 1132, 1133 (5th Cir. 1986) (market share
35
liability). See also Jefferson v. Lead Industries Ass’n, Inc., 106
F.3d 1245 (5th Cir. 1997) (declining to adopt market share
liability in Louisiana diversity suit for lead paint poisoning);
Rhynes v. Branick Mfg. Co., 629 F.2d 409 (5th Cir. 1980) (declining
to adopt “product line” liability theory in Texas diversity case).33
We apply Texas law as it currently exits, which is correctly stated
in Fibreboard.34 Finally, it is clear that this case was neither
tried nor determined on any of “the collective liability theories”
mentioned in Gaulding. See id. at 71.35
33
In Thompson, Bateman, and Jefferson, we also declined to
certify the issue to the Louisiana Supreme Court. Rhynes does not
mention certification.
34
We also note that in Gaulding the Texas Supreme Court
observed concerning the “concert of action” theory that “[m]ost
jurisdictions that have considered this theory have rejected its
application to latent disease product liability cases which involve
numerous manufacturers,” id. at 69, and concerning the “enterprise
liability” theory that it “has been rejected by virtually all other
jurisdictions [apart from the Eastern District of New York] that
have considered this concept.” Id. at 70. The Restatement Third,
Torts: Products Liability expressly declines to take a position on
market share liability. Id. § 15, comment c. The reporter’s notes
to this section state that “[a] substantial number of courts have
rejected the market-share approach.”
35
For example, there was no finding on any defendant’s market
share. Moreover, joint and several liability were imposed, which
Restatement Third, Torts: Products Liability § 15, comment c
indicates would be improper if such approach were used (“. . . if
a court does adopt some form of proportional liability, the
liability of each defendant is properly limited to the individual
defendant’s share of the market. The rules of joint and several
liability are incompatible with a market-share approach to
causation”). As to “concert of action,” there was no finding of
any concert. As to “enterprise liability,” there was no finding
that “the risks inherent in asbestos . . . products were jointly
controlled by the defendants.” Gaulding at 70. “Alternative
liability” is plainly inapplicable here as it applies only where
“acts of negligence are simultaneously committed by two or more
tortfeasors and only one act results in injury . . . [w]hen a
plaintiff fails to join all possible defendants, alternative does
36
Thus, the question becomes: did the implemented trial plan
include a litigated determination, consistent with the Seventh
Amendment, of the Texas-law mandated issues of whether, as to each
individual plaintiff, Pittsburgh Corning’s product was a cause of
his complained-of condition and, if so, the damages that plaintiff
suffered as a result.
We turn first to the phase III plaintiffs. In these cases,
the trial plan was adequately individualized and preserved Seventh
Amendment rights with respect to each individual’s actual damages
from an asbestos-related disease. However, it was not designed or
intended to, and did not, provide any trial or any determination of
whether a Pittsburgh Corning product was a cause of that disease.36
It was strictly a damages trial as to those individual plaintiffs.
The stipulation——not entered into until midway through phase
III——established merely that “some” individuals working in each of
the listed crafts, “during” each of the four decades 1942-1982 and
not apply.” Id. at 69 (emphasis added). See also In Re Benedectin
Litigation, 857 F.2d 290, 312 (3d Cir. 1988), cert. denied, 488
U.S. 1006 (1989) (applicable “only when two or more defendants have
been at fault, and one and only one caused the injury”);
Restatement Second, Torts § 433 B comment h, which states that
cases applying the doctrine “all have been cases in which all of
the actors involved have been joined as defendants. All of these
cases have involved conduct simultaneous in time, or substantially
so, . . . .” Here these factors are not met: the wrongful conduct
of the defendants was not simultaneous or substantially so (e.g.,
Fibreboard produced and sold asbestos products to which many
plaintiffs were allegedly exposed decades before Pittsburgh Corning
entered the business); the conduct of several parties, not only
one, allegedly caused the complained of injuries; and it is not
shown that all manufacturers of asbestos products to which all
plaintiffs were exposed were joined.
36
Nor was there any summary judgment, or judgment under Fed.
R. Civ. P. 50, rendered on that issue.
37
at each of the twenty-two worksites, “were exposed to asbestos”
with “sufficient length and intensity to cause pulmonary asbestosis
of varying degrees” and that “an asbestos-containing product of
Pittsburgh Corning Corporation was present during the decades 1962-
1982 at the specified worksites.” It was expressly not stipulated
“that any members of the various crafts at the various worksites
had the same exposure to any products,” or “that any such
individuals had the same susceptibility to asbestos-related
diseases in the various crafts and worksites,” or that “any
individual plaintiff was in fact exposed to injurious quantities of
asbestos from the products of any defendant.” Phase III did not
litigate or determine whether or to what extent any of the one
hundred sixty individual plaintiffs was exposed to Pittsburgh
Corning’s——or any other defendant’s——asbestos, or was exposed to
asbestos at any of the twenty-two worksites, or whether any such
exposure was in fact a cause of that plaintiff’s illness or
disease. Nor did phase III litigate or determine either any
individual plaintiff’s past connection with any particular worksite
or craft, or whether or to what extent such individual was exposed
to asbestos otherwise than at any of the specified worksites.37
37
Incidental general background and work history testimony as
to many of these one hundred sixty plaintiffs reflects claimed
extensive asbestos exposure at many locations other than the
twenty-two worksites, both within the general southeast Texas area,
elsewhere in the state, and at numerous locations in other states
(none of which were claimed to contain Pittsburgh Corning
asbestos), as well as lengthy exposure prior to 1962, and even
prior to 1942. For example, one phase III plaintiff’s exposure
apparently commenced before 1933; another was first exposed in
Oregon in 1942, later moved to Texas doing construction work “at
different locations around Texas,” and began experiencing weakness
38
Indeed, for the most part exposure evidence was not allowed and the
jury was instructed to assume sufficient exposure. Nor did phase
III either litigate or determine whether or to what extent asbestos
exposure, either generally or to the product of any particular
defendant, was uniform or similar for members of any given craft at
any one or more of the specified worksites.
We note that at least two of the twenty-two sites actually
each involved two plants, and another involved “the facilities” of
a company “including” its powerhouse. Further, Pittsburgh Corning
tendered evidence38 that a typical refinery covers several square
miles and indicating that at refineries, shipyards, and other
installations asbestos exposure levels were not uniform at the site
or throughout a craft or within a decade or between decades, and
that most individuals employed at the twenty-two worksites did not
have sufficient exposure to cause asbestosis. Also so tendered was
evidence indicating that exposure to asbestos below some level
would not produce asbestosis and even above that level risks remain
and shortness of breath sometime between 1965 and 1975; and another
“since about 1957" had “worked primarily as a plumber and pipe
fitter in the Waco area” during which he applied and removed
asbestos products. Another’s working career commenced in 1961 at
an ammunition plant in Tyler, Texas, where he remained (except for
some two years running a small store) until 1977 or 1978 and was
exposed to asbestos there; thereafter and until 1989 he worked in
construction at various jobs around Texas, including at Mount
Pleasant and in paper mills, and in at least eight other states,
and was exposed to asbestos; in “the early ‘80's” he began to feel
weaker; in 1986 he was diagnosed with asbestosis; and in 1989 he
returned to work at the Tyler ammunition plant where he remained
employed at trial.
38
The stipulation reserved it the right to do so and reflects
that the district court would adhere to its trial plan
notwithstanding any such tenders.
39
very low until a multiple of five or ten or twenty times the
threshold level is reached;39 that not all those exposed to asbestos
in substantial quantities and for protracted periods of time
develop asbestosis; that asbestosis develops in “a relatively small
percentage of patients with significant asbestos exposure”; and,
that although there is a dose response relationship——the more
exposure the more risk, the less, the less risk——respecting
asbestosis, nevertheless the effect of the same exposure is not the
same as between different individuals and “two similarly exposed
asbestos workers with exactly the same asbestos historical exposure
can go on to have in one case asbestosis and the other case no lung
problems.” Moreover, we have held, in a Texas law diversity case,
that “the appropriate test for a [plaintiff’s] minimum showing of
producing cause in asbestos cases” is that stated in Lohrmann v.
Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), namely the
“‘frequency-regularity-proximity’ test” under which “a motion for
summary judgment cannot be defeated merely by alleging work at a
shipyard in which defendants’ asbestos products had somewhere been
present. Rather, there must be proof of frequent and regular work
39
Also, that lung cancer, in addition to being caused by
smoking and asbestos exposure, can be caused by exposure to
radiation, chromium, arsenic, and polynuclear aromatic
hydrocarbons, and that exposure to such known causes of lung cancer
“are very frequent in both shipyards and the petrochemical
industry”; that because of the long latency of asbestos-related
lung cancer——generally 25 to 30 years, sometimes as short as 10 to
15 years——”if an individual were exposed to asbestos only a few
years prior to the diagnosis of lung cancer, that asbestos would
not be able to be incriminated” (and “exposures occurring 15 years
prior to diagnosis of lung cancer are not going to be as important
as exposures 30 or 35 years prior to diagnosis of lung cancer in
terms of being causally related”).
40
in an area of the shipyard in proximity to some specific item of
defendants’ asbestos containing product.” Slaughter v. Southern
Talc. Co., 949 F.2d 167, 171 (5th Cir. 1991) (emphasis added).40
It is important to note that this is merely a minimum showing;
Slaughter makes clear that making such a showing merely gets a
plaintiff to the jury, it does not entitled him to judgment as a
matter of law. See id. at 173. Further, it is obvious that for
these purposes a shipyard is not considered as a single,
undifferentiated, and uniform mass.
We have noted that the district court, in the order in which
it initially adopted the present plan, stated that for purposes of
the then-contemplated phase II trial it would “make a non-jury
determination as to which Plaintiffs or Plaintiffs’ decedents
worked for a sufficient period of time at each worksite so as to be
a proper member of that worksite’s group and which Plaintiffs were
proper members of each of the crafts at these worksites. . . .” As
previously observed, after phase I the case proceeded directly into
phase III without any phase II, and the stipulation was not entered
into until phase III was half complete. It is not clear that the
district court ever determined that any (or, if so, which) of the
tried one hundred sixty phase III plaintiffs, or that any (or if
so, which) of the unsevered extrapolation plaintiffs, actually did
work at the worksites “for a sufficient period of time” to be
“proper members of each of the crafts at these worksites.” And, if
40
Slaughter also observed that this test had been adopted by
all but three circuit courts and by some eight states. Id. at 171
n.3.
41
such determinations were made, it is not clear what criteria were
employed and what source or sources of information were utilized
either in selecting or in applying the criteria. In any event, it
is clear not only that any such determination was made non-jury,
but further that it was made without either any evidentiary (or
other) hearing or any summary judgment procedure (or Fed. R. Civ.
P. 50 motion). Accordingly, no such determination can serve to
justify or sustain the trial plan as implemented.
With one exception, noted below, we are aware of no appellate
decision approving such a group, rather than individual,
determination of cause in a damage suit for personal injuries to
individuals at widely different times and places. For example, in
a personal injury suit by individuals living in the neighborhood of
a landfill allegedly contaminated by defendant, the Sixth Circuit
remarked:
“Thus, the court, as is appropriate in this type of
mass tort class action litigation, divided its causation
analysis into two parts. It was first established that
Velsicol was responsible for the contamination and that
the particular contaminants were capable of producing
injuries of the types allegedly suffered by the
plaintiffs. Up to this point in the proceeding, the five
representative plaintiffs were acting primarily in their
representative capacity to the class as a whole. This
enabled the court the determine a kind of generic
causation——whether the combination of the chemical
contaminants and the plaintiffs’ exposure to them had the
capacity to cause the harm alleged. This still left the
matter of individual proximate cause to be determined.
Although such generic and individual causation may appear
to be inextricably intertwined, the procedural device of
the class action permitted the court initially to assess
the defendant’s potential liability for its conduct
without regard to the individual components of each
plaintiff’s injuries. However, from this point forward,
it became the responsibility of each individual plaintiff
to show that his or her specific injuries or damages were
42
proximately caused by ingestion or otherwise using the
contaminated water.” Sterling v. Velsicol Chemical Co.,
855 F.2d 1188, 1200 (6th Cir. 1988).41
See also In Re Agent Orange Product Liability Litigation, 818 F.2d
145 (2d Cir. 1987), cert. denied, 108 S. Ct. 695 (1988) (in appeal
from settlement in Rule 23(b)(3) class action for agent orange
exposure, in which general liability issues, including the military
contractor defense, were to be tried class-wide and individual
issues, such as each individual’s damages caused by exposure, “were
to be left to individual trials,” id. at 150, 164, the court holds
certification proper only because of “the centrality of the
military contractor defense” and that certification “would have
been error” in an action by civilians for exposure during civilian
affairs, noting “[t]he relevant question . . . is not whether Agent
Orange has the capacity to cause harm, the generic causation issue,
but whether it did cause harm and to whom. That determination is
highly individualistic, and depends upon the characteristics of
individual plaintiffs (e.g., state of health, lifestyle) and the
nature of their exposure to Agent Orange . . .,” id. at 165-166).42
41
This was a bench trial case, no jury apparently having been
demanded, in which a Rule 23(b)(3) class was certified, and a trial
held in which defendant’s culpability for contaminating the
landfill and area water supply with chemicals generically capable
of causing the injuries sued for was determined along with punitive
damages and the entire claims of the five class representatives.
Deferred for later “individual hearings” were “the issues of
causation and injury of” each of the other class members. Id. at
1194.
42
Cf. Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1229,
1234 (9th Cir. 1996) (in certifying Rule 23(b)(3) class in
prescription drug products liability suit, district court
“specifically excluded the individual issues of proximate
causation, compensatory damages”; class certification reversed
43
The district court also justified its trial plan by reliance
on Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 258-63
(5th Cir. 1974), where, in a Title VII Rule 23(b)(2) class action,
we stated that back pay could be awarded on a class-wide basis,
using average rates of pay and approximations, and did not require
an individual plaintiff by individual plaintiff approach. However,
Pettway is inapplicable here, for each of several reasons. In the
first place, Title VII actions are entirely equitable actions43 and
back pay awards therein are strictly equitable remedies, as we
recognized in Pettway (“the award of back pay” is “one element of
the equitable remedy,” id. at 1125), and as we have held in other
decisions both before and after Pettway. Johnson v. Georgia
Highway Express, Inc., 417 F.2d 1122, 1125 (5th Cir. 1969) (no
entitlement to a jury in Title VII action seeking back pay as that
is “an integral part of the statutory equitable remedy, to be
determined through the exercise of the court’s discretion, and not
by a jury”); Wilson v. Belmont Homes, 970 F.2d 53, 54-56 (5th Cir.
because sufficient reasons not given, but rule 23(c)(4)(A)
exclusion of individual issues essentially approved); Malcolm v.
National Gypsum Co., 995 F.2d 346, 350-353 (2d Cir. 1993)
(disapproving consolidation for trial of forty-eight asbestos cases
because too many different individual exposures, crafts, worksites,
and diseases involved); Jenkins, 109 F.R.D. at 284 (observing, in
justifying class trial of common issues and individual trials of
individual issues of exposure-causation and damages, “[t]he
experience of this Court . . . has been that the verdicts that have
been rendered in favor of defendants have been rendered on the
basis of a plaintiff’s failure to prove exposure or to prove the
existence of an asbestos-related injury. The defendants have not
been successful on the state of the art defense).”
43
Except for certain damages claims first authorized by the
1991 amendments thereto.
44
1992). See also Johnson v. Chapel Hill ISD, 853 F.2d 375, 383 (5th
Cir. 1988) (front pay). Thus, in Pettway there was no Seventh
Amendment right to jury trial. Johnson; Wilson. Here, by
contrast, we have personal injury damage suits, the protypical
Seventh Amendment case. In the second place, Pettway involved only
federal law, and hence this Court was not constrained by the Rules
of Decision Act and Erie, as it is here. Relatedly, Pettway
involved what Johnson had characterized as an “equitable remedy, to
be determined through the exercise of the court’s discretion,”
while here the elements of liability and recoverable damages are
fixed by state substantive law.44
Nor do we consider that In Re Chevron U.S.A., Inc., 109 F.3d
1016 (5th Cir. 1997), justifies the instant trial plan. That
action involved claims by approximately 3,000 neighboring property
owners for personal injury and property damage allegedly caused
contamination from Chevron’s former crude oil storage waste pit.
Apparently no form of class action was involved, although some
cases were consolidated. The district court directed that thirty
individual plaintiffs be chosen, fifteen by the plaintiffs and
fifteen by the defendants, and that there be “a unitary trial on
the issues of ‘general liability or causation’ on behalf of the
remaining plaintiffs, as well as the individual causation and
44
Also, Pettway involved matters such as back pay among a class
of employees, matters which by their nature are far more
objectively measurable and far more reflected by measurable
variables common to the group than are such inherently subjective,
imprecise, and wholly individualized matters as physical pain,
mental suffering, and loss of enjoyment of life which are
significant damages elements in this kind of case.
45
damage issues of the [thirty] selected plaintiffs.” Id. at 1017.
Apparently, the individual causation and damage issues of the
remaining unselected plaintiffs would be determined subsequently in
individual trials (if the unitary trial established “liability on
the part of Chevron for the pollutants that, allegedly, give rise
to all of the plaintiffs’ claims,” id. at 1019). Chevron sought
mandamus, contending “that the goal of the ‘unitary’ trial was to
determine its liability, or lack thereof, in a single trial and to
establish bellwether verdicts to which the remaining claims could
be matched for settlement purposes.” Id. at 1017. We stated that
the thirty selected plaintiffs were not shown or chosen so as to be
representative of the other plaintiffs, and observed that “[a]
bellwether trial designed to achieve its value ascertainment
function for settlement purposes or to answer troubling causation
or liability issues common to the universe of claimants has as a
core element representativeness . . . .” Id. at 1019 (emphasis
added). We granted mandamus prohibiting “utilization of the
results obtained from the trial of the thirty (30) selected cases
for any purpose affecting issues or claims of, or defenses to, the
remaining untried cases.” While the majority opinion (one judge
specially concurred) contains language generally looking with favor
on the use of bellwether verdicts when shown to be statistically
representative, this language is plainly dicta, certainly insofar
as it might suggest that representative bellwether verdicts could
properly be used to determine individual causation and damages for
other plaintiffs. Cf. Sterling, 855 F.2d at 1200 (difference
46
between generic and individual causation). To begin with, no such
question was before this Court, as the trial plan contemplated that
individual causation and damages issues would not be controlled by
the thirty individual bellwether verdicts, which would be used to
encourage settlement. Moreover, what we did——our holding——was to
prevent any preclusive use of the unitary trial results (whether
for general causation or individual causation or otherwise) in
cases other than those of the thirty selected plaintiffs.45 And,
we concluded that if the district court carried out another,
different trial plan, that would present “matters for another panel
to consider in the event those decisions are subject to appellate
review.” Id. at 1021. Finally, the majority opinion in In Re
Chevron U.S.A. does not even cite Fibreboard, or the Seventh
Amendment (or discuss the right to jury trial), and does not refer
to the Texas substantive law elements of liability and damages in
the matter before it. Clearly, In Re Chevron U.S.A. does not
control the result here, and this panel is not bound by its dicta.46
In Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), a
divided panel of the Ninth Circuit in a rule 23(b)(3) class action
permitted recoverable tort damages to be determined in a lump sum
for the entire class. Hilao was a suit under the Alien Tort Claims
45
We also specifically stated that we expressed no opinion on
whether the mix of claims there was such as to potentially
authorize either bellwether trials based on appropriate sampling or
a stand-alone, common issue trial. Id. at 1021.
46
See, e.g., Cosden Oil v. Karl O. Helm Aktiengesellschaft, 736
F.2d 1064, 1070 n.7 (5th Cir. 1984) (“This panel, however, is not
bound by dicta of a previous panel”); Curacao Drydock Co. v. M/V
Akritas, 710 F.2d 204, 206 (5th Cir. 1984).
47
Act, and the Court essentially applied substantive principles of
federal or international “common law.” See id. at 776-778. The
majority distinguished Fibreboard on the basis that there “the
proposed procedure worked a change in the parties’ substantive
rights under Texas law that was barred by the Erie doctrine.” Id.
at 785 (footnote omitted). By the same token, Hilao is
distinguishable here; it did not operate under the constraints of
the Rules of Decision Act or Erie; the present case, by contrast,
does operate under those constraints. If Hilao is not thus
distinguishable it is simply contrary to Fibreboard, which binds us
and which in our opinion is in any event correct. Further, Hilao
did not address——and there was apparently not presented to it any
contention concerning——the Seventh Amendment. Finally, we find
ourselves in agreement with the thrust of the dissenting opinion
there. Id. at 788 (“Even in the context of a class action,
individual causation and individual damages must still be proved
individually”).
In sum, as Fibreboard held, under Texas law causation must be
determined as to “individuals, not groups.” And, the Seventh
Amendment gives the right to a jury trial to make that
determination. There was no such trial determination made, and no
jury determined, that exposure to Pittsburgh Corning’s products was
a cause of the asbestos disease of any of the one hundred sixty
phase III plaintiffs. Nor does the stipulation determine or
establish that. Accordingly, the judgments in all the one hundred
forty-three phase III cases before us must be reversed and
48
remanded.
We turn now to the extrapolation cases. As to the matter of
individual causation, it is obvious that the conclusion we have
reached in respect to the phase III cases applies a fortiori to the
extrapolation cases. In the extrapolation cases there was no trial
and no jury determination that any individual plaintiff suffered an
asbestos-related disease.47 Indeed, in the extrapolation cases
there was no trial at all——by jury or otherwise——and there was no
evidence presented. So, our holding as to the phase III cases
necessarily requires reversal of the judgments in the five
extrapolation cases before us.
As to the matter of actual damages, the extrapolation cases
are likewise fatally defective. Unlike the phase III cases, in the
extrapolation cases there was neither any sort of trial
determination, let alone a jury determination, nor even any
evidence, of damages. The district court considered that these
deficiencies were adequately compensated for by awarding each
extrapolation case plaintiff who alleged an asbestos-related
disease an amount of actual damages equal to the average of the
awards made in the phase III cases for plaintiffs claiming the same
category of disease. This plainly contravenes Fibreboard’s holding
that under the substantive law of Texas recoverable damages are the
“wage losses, pain and suffering, and other elements of
compensation” suffered by each of the several particular plaintiffs
47
Nor was there any summary judgment or Rule 50 judgment in
that respect. In some few of the cases, an asbestos-related
disease may have been admitted.
49
as “individuals, not groups.” We also observe in this connection
that none of the experts at the extrapolation hearing puported to
say that the damages suffered by the phase III plaintiffs in a
given disease category (whether as disclosed by the phase III
evidence or as found by the jury) were to any extent representative
of the damages suffered by the extrapolation plaintiffs in the same
disease category.48 The procedure also violates Pittsburgh
Corning’s Seventh Amendment right to have the amount of the legally
recoverable damages fixed and determined by a jury. The only
juries that spoke to actual damages, the phase I and III juries,
received evidence only of the damages to the particular plaintiffs
before them, were called on to determine only, and only determined,
each of those some one hundred seventy particular plaintiffs’
actual damages individually and severally (not on any kind of a
group basis), and were not called on to determine, and did not
detrmine or purport to determine, the damages of any other
48
As previously observed, see notes 23, 24, and 25, supra, and
accompanying text, comparability or representativeness were
measured and found only in terms of certain specified variables,
and these did not include, for example, matters which anyone
claimed were representative of physical pain, mental suffering,
loss of enjoyment of life, wage loss (past or future), or medical
expenses. Similarly, Professor Frankewitz “made no attempt . . .
to correlate or to identify any results or factors . . . that would
predict or estimate what jury awards might be” and stated that none
of what he did “related to magnitude of verdicts.”
We also note that the testimony at the extrapolation hearing,
particularly that of Dr. Dement and Professor Frankewitz, was
fatally flawed because their information as to the distribution of
the variables among the extrapolation plaintiffs (and to a large
extent among the phase III plaintiffs) was simply based on what
they had been furnished by clerks or paralegals in the office of
plaintiffs’ counsel, who did all the assignment of variables (and
in some cases their interpretation) to particular plaintiffs, and
was not supported by independent evidence.
50
plaintiffs or group of plaintiffs.49 We have held that “inherent
in the Seventh Amendment guarantee of a trial by jury is the
general right of a litigant to have only one jury pass on a common
issue of fct.” Blue Bird Body Co., 573 F.2d at 318. This requires
that if separate trial are ordered, the separately tried issues
must be “distinct and separable from the others.” Id. See also
Matter of Rhone Poulenc, 51 F.3d 1293 (7th Cir.), cert. denied, 116
S. Ct. 184 (1995).50 By the same token, where the issues to be
49
And we note that the phase III verdicts within each disease
category varied quite significantly. There were mesothelioma
verdicts of $200,000 and of over $2 million, lung cancer verdicts
of $150,000 and of over $1 million, asbestosis verdicts of less
than $100,000 and of over $1 million, pleural verdicts of $150,000
and of over $1 million. There were also twelve zero verdicts.
And, Professor Hazel “was struck” by the differences in verdicts as
between the two different juries that tried the phase III cases.
The phase III juries did not make average awards, they made a
series of very different individual awards. The averages were
created by others after the fact. And, if we look to averages, we
note that the average phase III verdict in pleural cases was higher
than that in both lung cancer and asbestosis cases, contrary to the
almost universal view that pleural disease is less serious and less
disabling than either lung cancer or asbestosis (and that of all
asbestos personal injury cases pleural cases have the least
settlement value). Professor Hazel was unable to suggest any
explanation for this discrepancy.
50
There the Seventh Circuit stated:
“. . . the judge must not divide issues between separate
trials in such a way that the same issue is reexamined by
different juries. . . . The right to a jury trial in
federal civil cases, conferred by the Seventh Amendment,
is a right to have juriable issues determined by the
first jury impaneled to hear them (provided there are no
errors warranting a new trial), and not reexamined by
another finder of fact. This would be obvious if the
second finder of fact were a judge. . . . But it is
equally true if it is another jury.” Id. at 1303.
Similarly, where legal and equitable claims share one or more
overlapping common factual issues, the legal issues must first be
tried to the jury to protect Seventh Amendment rights that could be
51
separately tried are separable and distinct, the Seventh Amendment
rights of the parties are preserved as to both sets of issues.
Blue Bird Body Co., 573 F.2d at 318. As the cited cases
demonstrate, these principles are fully applicable in class actions
for damages. It necessarily follows from these principles that the
jury’s phase III findings of the actual damages of each of the
individual phase III plaintiffs cannot control the determination
of, or afford any basis for denial of Pittsburgh-Corning’s Seventh
Amendment rights to have a jury determine, the distinct and
separable issues of the actual damages of each of the extrapolation
plaintiffs.51
We conclude that the extrapolation case judgments, as well as
the phase III judgments, are fatally flawed, are contrary to the
dictates of Fibreboard, and contravene Pittsburgh-Corning’s Seventh
Amendment rights. We do not act in ignorance or disregard of the
asbestos crises. In Amchem Products, Inc. v. Windsor, 117 S. Ct.
2231, 2237-38 (1997), the Supreme Court called attention to the
report of the Judicial Conference’s Ad Hoc Committee on Asbestos
Litigation, stating that “Real reform, the report concluded,
required federal legislation creating a national asbestos-dispute
resolution scheme.” Id. at 2238. The Court also observed, “The
argument is sensibly made that a nationwide administrative claims
infringed by prior bench trial determination of the common issues.
Roscello v. Southwest Airlines, 726 F.2d 217, 221 (5th Cir. 1984).
51
Nor are we aware of any legally valid ground on which the
personal injury damages suffered by one person may be determined,
without any evidence, solely on the basis of the average of awards
made to other persons in similar cases.
52
processing regime would provide the most secure, fair, and
efficient means of compensating victims of asbestos exposure.
Congress, however, has not adopted such a solution.” Id. at 2252
(footnote omitted). Nevertheless, the Court refused to stretch the
law to fill the gap resulting from congressional inaction. As we
said in Fibreboard, federal courts must remain faithful to Erie and
must maintain “the separation of powers between the judicial and
legislative branches.” Id. at 711.52 “The Judicial Branch can
offer the trial of lawsuits. It has no power or competence to do
more.” Id. at 712.
We accordingly reverse the judgments before us in all the one
hundred forty-three phase III cases and in all the five
extrapolation cases, and those one hundred forty-eight cases are
remanded for further proceedings not inconsistent herewith.
B. Other Pittsburgh Corning Contentions;
Plaintiffs’ Cross-Appeal as to Pittsburgh Corning
We turn now to Pittsburgh Corning’s remaining claims of error
and to plaintiffs’ cross-appeal as to Pittsburgh Corning. In
light of our above holding, we pretermit any consideration of any
remaining claims of Pittsburgh corning, and of any claims of error
raised by plaintiffs in their cross-appeal as to Pittsburgh
52
Cf. Granfinanciera, SA v. Nordberg, 109 S. Ct. 2782, 2790 n.4,
2795-97 (1989) (indicating that under the “public rights” doctrine
Congress can, even in some cases not involving the federal
government, sometimes limit what might otherwise be Seventh
Amendment rights, when it acts for a valid legislative purpose
under Article I and has created a seemingly private right so
closely integrated into a public regulatory scheme as to be a
matter appropriate for agency or specialized court resolution, and
has assigned its adjudication to such an agency or specialized
court, and jury trials would impair the functioning of the scheme).
53
Corning, which relate solely to some or all of the phase III cases
or some or all of the extrapolation cases or solely to both. Any
other claims of Pittsburgh Corning, and plaintiffs on their
referenced cross-appeal, we consider solely insofar as they pertain
to the nine judgments in the phase I class representative cases.
We first consider Pittsburgh Corning’s contentions; to the extent
they sufficiently relate to the same subject matter, we consider
plaintiffs’ cross-appeal contentions along with the related
Pittsburgh Corning contention.
1. Prejudgment Interest
The district court held that prejudgment interest on past
actual damages accrued at the expiration of six months after the
plaintiff’s last exposure. Pittsburgh Corning contends, inter
alia, that such accrual date is too early; plaintiffs in their
cross-appeal contend it is too late. In Owens-Illinois, Inc. v.
Estate of Burt, 897 S.W.2d 765 (Tex. 1995), the Texas Supreme Court
held that in asbestos personal injury actions prejudgment interest
commences to accrue six months after the date the defendant
received notice of the claim or the date the lawsuit was filed,
whichever is earlier.53 The awards of prejudgment interest are
hence vacated and remanded for recalculation.
2. Miscellaneous Asserted Trial Errors
Pittsburgh Corning complains that the district court
53
Strictly speaking, this holding was directed to cases filed
before September 2, 1987, but the court stated that it was
“consistent with the current prejudgment interest statute which is
applicable to actions commenced on or after September 2, 1987.”
Id. at 769.
54
erroneously excluded evidence it tendered of studies by Dr.
Selikoff concerning the incidence of cancer among refinery workers.
However, this claim as briefed to us relates only to the phase III
cases; and, in the motion for new trial hearing Pittsburgh Corning
stated “we didn’t really use the refinery worker studies as such in
the Phase I trial. We tried to use it in Phase 3, but in Phase 1
we used many studies other than the fivefold insulator study of Dr.
Selikoff” and that prejudice was reflected as to phase III by the
fact that “the [phase III] verdicts are multiples [of] what the
compensatory results were in Phase I. I think it’s a striking
contrast.” Pittsburgh Corning also complains about being limited
as to its presentation of smoking evidence and of the jury
instructions in that regard. Again, as briefed in this Court, this
claim appears focused largely on phase III; and, at the motion for
new trial hearing, Pittsburgh Corning observed that smoking
evidence was allowed in the phase I trial and that of the ten phase
I cases there was a defense verdict in one case and contributory
negligence findings in four other cases, and in essence conceded
that this claim was viable only as to phase III. We conclude that
the refinery study and smoking contentions present no reversible
error respecting the phase I cases.
Pittsburgh Corning complains that plaintiffs’ counsel engaged
in repeated improper appeals to bias, passion, and prejudice, as a
result of which the phase I jury awards (and those in phase III,
which we do not address) were excessive. While Pittsburgh Corning,
understandably perhaps, rather exaggerates in this connection, it
55
is nevertheless regrettably true that plaintiffs’ counsel stepped
well out of line on several occasions. However, as to virtually
all of these instances in which Pittsburgh Corning made objection,
the objection was promptly and properly sustained and, on request,
an appropriate instruction was given. Some of what is raised on
appeal in this connection was not objected to below. Considering
the phase I evidence and verdicts, the length of the phase I trial,
and the trial court’s rulings, we are not persuaded that reversible
error has been demonstrated or that manifest injustice would result
by allowing the verdict to stand. See Johnson v. Ford Motor Co.,
988 F.2d 573, 582 (5th Cir. 1993); Mills v. Beech Aircraft Corp.,
Inc., 886 F.2d 758, 765 (5th Cir. 1989); Wilson v. Johns-Manville
Sales Corp., 810 F.2d 1358, 1362 (5th Cir.), cert. denied, 484 U.S.
828 (1987).54
Pittsburgh Corning asserts error in the trial court’s refusal
to furnish the prospective jurors a list of all the over two
thousand class members so the jurors could be questioned about
whether they knew any of them. The district court determined that
this was impractical and unnecessary. The prospective jurors had
the ten individual class representatives identified to them. Each
54
As to Pittsburgh Corning’s complaint that one of its
witnesses was served with a subpoena in the courtroom just after
testifying, the service occurred during a break, outside the
presence of the jury and the judge. When the proceedings resumed,
the district court reprimanded plaintiffs’ counsel. Pittsburgh
Corning mentions adverse audience reaction on a couple of
occasions, but the district court properly handled those matters.
Neither of these occurrences, or the use of the demonstrative box
alluded to by Pittsburgh Corning, presents any reversible error,
whether considered alone or in the aggregate with the other claims
in this connection.
56
prospective juror had already filled out a 53-part questionnaire,
and the completed questionnaires were available to counsel. Among
other things, this questionnaire asked whether the prospective
juror knew anyone suffering from an asbestos-related disease and,
in a separate question, whether the prospective juror “knew of
anyone who has or had a lawsuit concerning alleged asbestos-related
injuries.” If the latter question were answered “yes,” the person
or persons so known were to be named and an explanation given.55
The district judge’s questioning of the prospective jurors resulted
in several being excused because of their relationship with persons
who suffered from asbestos-related disease.56 The parties were then
afforded an opportunity to voir dire the prospective jurors,
including asking individuals about their answers to the above
identified questions on the questionnaire. And, Pittsburgh Corning
did ask certain jurors about their referenced answers. No
complaint is made that voir dire by counsel was unduly restricted
in this respect. A district judge generally has broad discretion
in determining how best to conduct voir dire, United States v.
Greer, 968 F.2d 433, 435, 441 (5th Cir. 1992), cert. denied, 113
S. Ct. 1390 (1993), but that discretion is abused if the scope of
voir dire is inadequate to discover bias or deprives a party of an
opportunity to make reasonably intelligent use of his peremptory
55
Another separate question asked “have you read, heard about
or seen any reports about court cases or lawsuits about asbestos,”
with a “yes” answer calling for an explanation.
56
The district court also asked the prospective jurors whether,
should they later learn that someone they knew was a member of the
class, they could set that aside in their deliberations.
57
challenges. Id. at 435, 443. Considering together the
questionnaire, the court’s questions to the panel, and the
individual voir dire allowed the parties, we conclude that no abuse
of discretion has been shown, although the better practice would
have been to furnish the prospective jurors the class list.
3. Recusal
We reject, as we earlier did in denying Pittsburgh Corning’s
petition for mandamus raising the identical contentions, Pittsburgh
Corning’s claims that the district judge who initially primarily
presided over these cases should have recused himself earlier, as
well as that the successor district judge did not properly rule on
their motions raising that matter. After again thoroughly
considering the matter, we find these contentions to be without
merit.
4. Exemplary Damages
Pittsburgh Corning raises several challenges to the award of
exemplary damages. It complains of the admission of evidence
concerning its Tyler asbestos plant. Although none of the class
had worked there and the asbestos exposure there was far greater
than at the twenty-two sites at issue, the evidence was relevant to
the exemplary damages issue as having some tendency to show
Pittsburgh Corning was aware of, and consciously indifferent to,
the risks posed by the asbestos it manufactured. A limiting
instruction was given in this connection. No abuse of discretion
in the admission of this evidence has been established. See King
v. Anthony world Industries, 906 F.2d 1022, 1026 (5th Cir. 1990),
58
cert. denied, 500 U.S. 942 (1991).
Further complaint is made by Pittsburgh Corning as to the
district court’s instructions concerning exemplary damages and what
was necessary to find in order to impose them. To the extent that
these contentions are predicated on proper objections made at
trial, we conclude that the instructions, when taken and considered
as a whole, were adequate, though not perfect, and that any
deficiency did not prejudice Pittsburgh Corning’s substantial
rights. See Russell v. Plano Bank & Trust, 130 F.3d 715, 719 (5th
Cir. 1997). Some challenges to the instructions that Pittsburgh
Corning now raises are not supported by proper objection below, and
as to these we conclude that reversal under the plain error
doctrine is not appropriate here. Id. at 719, 721. The use of a
multiplier to determine punitive damages is likewise challenged by
Pittsburgh Corning. However, our decisions in Jenkins and
Fibreboard mandate rejection of that challenge. It is also
contended that the multiplier of three that the jury assigned to
Pittsburgh Corning is excessive, both generally and as a matter of
due process. We reject this contention. See Edwards v. Armstrong
World Industries, 911 F.2d 1151, 1154-55 (5th Cir. 1990).57 In
another variation of its excessiveness argument, Pittsburgh Corning
calls attention to the fact that the district court, after
57
We note that neither Pittsburgh Corning nor plaintiffs sought
to submit evidence of Pittsburgh Corning’s financial resources or
insurance coverage or evidence of other asbestos damage awards of
any kind which Pittsburgh Corning had paid or as to which final
judgments were outstanding against it. See Owens-Corning
Fibreglass v. Malone, __ S.W.2d __, 41 Tex. Sup. Ct. J. 877, 1998
WL 288690 (Tex. 1998).
59
initially concluding that the multiplier applied to all actual
damages, granted a remittitur by its ruling that the multiplier
applied only to the share of actual damages for which Pittsburgh
Corning was liable. This, says Pittsburgh Corning, was an eighty
percent reduction (much larger, it says, in the phase III and
extrapolation cases), and under Wells v. Dallas ISD, 793 F.2d 679,
683-84 (5th Cir. 1986), mandates a new trial. We disagree. The
district court initially observed that as to punitive damages,
“[t]he jury verdict is well supported by the evidence and does not
offend the Texas proportionality rule.” Although it then concluded
that the multiplier should apply to the entire amount of actual
damages found, it reserved “for another day” whether “for equitable
considerations or by way of remittitur” it should limit the
multiplier to the share of actual damages for which Pittsburgh
Corning would be liable. It ultimately so limited the multiplier.58
In doing so, however, the court expressly stated “This Court does
not find the amount of the multipliers to be excessive as to
suggest that passion rather than reason motivated the jury.” The
Court went on, in the same opinion, to state:
“Taking into account equitable considerations, and
in the nature of a remittitur, the Court has decided to
apply the multipliers set for a defendant to that
defendant’s allocated share of actual damages. This
ruling also most closely comports with the holding in
Edwards v. Armstrong World Industries, Inc., 911 F.2d at
1154.”
Plaintiffs contend “there was not an actual remittitur.” Given the
58
Plaintiffs do not challenge this ruling in their cross-
appeal.
60
district court’s having expressly found that the multiplier verdict
was well supported by the evidence, was proportional, and was the
product of reason, not passion, it appears to us that the court was
in part interpreting the jury’s verdict——which, after all, was a
multiplier, not a stated sum——in accordance with its most likely
intent and in part was attempting to conform the judgment to the
assumptions implicit in our Edwards decision. In that Texas law
diversity suit for asbestos personal injury damages, we “review[ed]
the proportionality of the punitive damage award against Celotex in
comparison with its allocated share of actual damages” and, so
doing, did “not find it so excessive as to suggest that passion
rather than reason motivated the jury.” Id. at 1154. Based on the
foregoing, it is clear to us that the doctrine of Wells v. Dallas
ISD is not applicable here. We reject Pittsburgh Corning’s
challenges to the punitive damage award.
Plaintiffs present two challenges to the punitive damages
award. First, they contend that the multiplier should be applied
not only to the actual damages awarded by the jury, but also to the
prejudgment interest which was subsequently awarded by the court.
They contend in this connection that Texas law regards prejudgment
interest as a component of actual damages, citing, among other
cases, Benavides v. Isles Construction Co., 726 S.W.2d 23, 25 (Tex.
1987); Paramore v. Nehring, 792 S.W.2d 210 (Tex. App.——Austin 1990,
no writ); El Paso County Water Imp. Dist. No. 1 v. Grijalua, 783
S.W.2d 736, 740 (Tex. App.——El Paso 1990), writ denied, 795 S.W.2d
705 (Tex. 1990); and Wood v. Armco, 814 F.2d 211, 215 (5th Cir.
61
1987). These cases do not address the issue now before us. Many
of them, such as Benavides, El Paso County Water Imp. Dist. No. 1,
and Wood are essentially pleading cases, stating in general terms
that “common law” prejudgment interest is an element of actual
damages that has to be specifically pleaded for. Paramore held
that prejudgment interest was a part of “the actual damages” which
the Texas Deceptive Trade Practices Act (DTPA), Tex. Bus. & Com.
Code § 17.50(b)(1), required the trial court to double when
rendering judgment. However, Paramore recognizes that three other
Texas Courts of Appeals had held otherwise, and in each of those
three cases the Texas Supreme Court had refused application for
writ of error “no reversible error.” See Paramore, 792 S.W.2d at
211-212. Since Paramore, the Fourteenth Court of Appeals declined
to follow its approach and has continued to hold “that prejudgment
interest should not be included as actual damages before trebling”
under the DTPA. Roberts v. Grande, 868 S.W.2d 956, 960 (Tex.
App.——Houston [14th] 1994; no writ).59 Moreover, in a case such as
this there are no mandatory punitive damages, and whether to award
them, and how much to award, is a question for the jury (subject to
review for excessiveness). Here, the most reasonable view of the
verdict——one apparently shared by the trial court——is that it does
not reflect on intention to have the multipliers it selected apply
to anything other than “actual damages” or “compensatory damages”
as defined in the court’s charge and as fixed by the phase I jury
59
And, the Texas legislature likewise has in effect overruled
the Paramore approach. See Tex. Bus. & Com. Code § 17.50(e) (Acts
1995, 74th Leg. ch. 414 § 5).
62
for the class representatives (and to be fixed by the phase III
juries for the other class members). There was no mention of
prejudgment interest in the charge, and the definition and elements
of “actual damages” (or “compensatory damages”) as given in the
charge included only the conventional elements (and not prejudgment
interest or anything similar thereto) and purported to be complete.
The jury was told that class members would “have to prove, first of
all, whether they are entitled to compensatory, or actual damages,
and if so, the amount,” and “if you award punitive damages, what
you are asked to do is make an award for each one dollar of actual
damages which may subsequently be determined for a particular
plaintiff . . . an amount that would be a fraction of one dollar or
a multiple of one dollar for each dollar of actual damages . . .
for each one dollar of actual or compensatory damages.” The phase
I jury proceeded to fix the “compensatory damages” for each of the
class representatives, as well as the multiplier for each
defendant. The most reasonable interpretation of the verdict is
that the jury intended the multiplier to apply only to the actual
or compensatory damages as found by them, not to something else.
We reject plaintiffs’ claim that the multiplier should be applied
to prejudgment interest.
Plaintiffs’ final contention in their cross-appeal as to
Pittsburgh Corning is that we should hold it “jointly and severally
liable for the exemplary damages assessed against it and Celotex.”
We reject this contention. Plaintiffs base their argument on Hofer
v. Lavender, 679 S.W.2d 470 (Tex. 1984), in which the Texas Supreme
63
Court held that the wrongdoer’s estate could be liable for punitive
damages, relying in part on the notion that such damages were not
simply to punish the guilty party, but also to “reimburse for
losses too remote to be considered as elements of strict
compensation” or “to compensate for inconvenience and attorney’s
fees.” Id. at 474. Plaintiffs also rely on Celotex Corp. v. Tate,
797 S.W.2d 197, 208-209 (Tex. App.——Corpus Christi 1990; no writ),
where the court, in rejecting a due process challenge to a punitive
damage award based on the contention that the defendant was being
subjected to successive multiple punishments for the same conduct,
relied on the above language from Hofer in stating that punitive
damages had a compensatory component as to each plaintiff, that the
jury was instructed in the quoted Hofer language, and that it could
not be determined what portion of the exemplary damages award
related to the Hofer nonpunitive components. These authorities do
not address the question of joint and several liability for
punitive damages.
We believe plaintiffs seek to assign to Hofer and Celotex a
weight which they will not bear. We reviewed those two decisions,
and a host of other Texas authorities, in Estate of Moore v.
C.I.R., 53 F.3d 712 (5th Cir. 1995), where we stated:
“. . . [T]he Texas Supreme Court has emphasized at least
since 1847 that exemplary damages are awarded not to
compensate the plaintiff for any injury received but to
punish the defendant and to deter others. [citations
omitted] This Court too has repeatedly stated that
exemplary damages are not compensatory under Texas law.
Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 474
(5th Cir. 1986) (‘The purpose of punitive damages is not
to compensate the victim but to create a deterrence to
the defendant, and to protect the public interest.’);
64
[citations omitted].
. . . .
We also note that the year after the Texas Supreme
Court released its opinion in Hofer, the court determined
that prejudgment interest is not available on exemplary
damages precisely because of their non-compensatory
nature. The court stated: ‘Punitive damages are
intended to punish the defendant and to set an example to
others. . . . They are assessed over and above the
amount of damages necessary to indemnify the plaintiff.
The plaintiff can thus be made whole even if prejudgment
interest is not awarded on punitive damages.’ Cavnar v.
Quality Control Parking, Inc., 696 S.W.2d 549, 555-56
(Tex. 1985) (citation omitted).
Texas courts have also rejected arguments that
punitive damages should be reduced in proportion to the
percentage of negligence attributed to the plaintiff.
Reduction of punitive damages is not appropriate because
‘[t]he purpose of awarding exemplary damages is not to
compensate the plaintiff, but to punish and set an
example to others.’ Elbar, Inc. v. Claussen, 774 S.W.2d
45, 53 (Tex. App.——Dallas 1989, writ dismissed as moot);
[citations omitted].
. . . .
There is no requirement that exemplary damages bear
any relation to the plaintiff’s inconvenience, attorney’s
fees, or losses too remote to be considered as elements
of actual damages.” Id. at 715-716.
In Estate of Moore, we concluded by stating that “[t]he
overwhelming weight of Texas authority holds that exemplary damages
are not awarded to compensate the plaintiff for any injury” and
that the “fundamental truth” is that “exemplary damages in Texas
are awarded on account of and in proportion to the defendant’s
wrongful conduct.” Id. at 716. See also Ellis County State Bank
v. Keever, 888 S.W.2d 790, 796, 798 (Tex. 1994), which reiterates
the holding of Cavnar v. Quality Control Board, 696 S.W.2d 549,
555-56 (Tex. 1985), that prejudgment interest is not recoverable on
65
punitive damages because “‘[p]unitive damages are intended to
punish the defendant and to set an example to others. They are
assessed over and above the amount of damages necessary to
indemnify the plaintiff,’” and which goes on to state that
“[p]unitive damages, being inherently penal in character, should
not be enlarged by the imposition of prejudgment interest.”60
Whatever may be the case where defendants, each with malice,
act jointly to commit a single wrong, and the jury assesses a
single punitive damages award in one specified dollar amount
“jointly against said defendants,” see Waggoner v. Wyatt, 94
S.W.1076, 1078 (Tex. Civ. App. 1906; writ refused),61 that is not
the situation here. Here the theory of liability against
defendants as submitted to the jury was not one of joint action (or
civil conspiracy), but strictly of individual action, often taken
at widely different times (e.g., Fibreboard and Celotex during the
period after 1942, Pittsburgh Corning only after 1962). Further,
the jury instructions concerning punitive damages mentioned only
punishment for wrongdoing and setting an example to deter others,
and did not include any Hofer-type element such as compensation for
losses too remote to be covered by actual damages, or for
60
See also Tex. Civ. Proc. & Remedies Code § 41.006 (applicable
to actions filed after September 2, 1987), which provides that a
punitive damages award “must be specific as to a defendant” and
“each defendant is liable only for the amount of the award made
against that defendant.”
61
See also St. Louis & S.W. Ry. Co. of Texas v. Thompson, 113
S.W. 144, 147 (Tex. 1908).
66
inconvenience or attorney’s fees.62 Finally, punitive damages
liability and the multiplier were each fixed by the jury separately
from each other and separately for each defendant. The multiplier
ultimately assessed by the jury was different for each defendant
(except Carey Canada and Fibreboard were each separately assessed
a $1.50 multiplier). Obviously, what the jury contemplated was
separate, several punitive damages awards as to each defendant. We
know of nothing in Texas law which prevents this.
Finally, reliance on a Hofer-type quasi-compensatory approach
to impose joint and several liability for the separate punitive
damages awards would render suspect the entire multiplier concept
in this kind of phased trial. As previously noted, the multiplier
concept was approved in Jenkins on the basis that punitive damages
were “not to compensate the victim,” id., 782 F.2d at 474, and that
having them vary with actual damages (by a multiplier for each
defendant severally based on the wrongfulness of its conduct) would
preserve the necessary individual consideration because in the
subsequent individual cases each individual’s actual damages would
62
Thus, the phase I charge stated:
“Exemplary damages or punitive damages means an
amount that you may, in your discretion, award as an
example to others and as a penalty or by way of
punishment, in addition to any amount that you find as
actual damages.
To say it another way, there are several purposes
behind an exemplary damage award, include [sic] punishing
the wrongdoer, setting an example so that others may be
deterred from similar conduct in the future.
Simply put, this issue is that of just punishment,
not fair compensation. The focus in this regard is on
the Defendants’ conduct, not on the product.”
67
be found. However, the Hofer quasi-compensatory factors were not
submitted as part of actual (or punitive) damages and they do not
necessarily vary with variations in the amount of actual damages.
It is plain then that the trial here, and the trial plan, so
far as concerned punitive damages and the multiplier, was
formulated, approved, and conducted on the assumption that such
damages were entirely punitive and to serve as an example and were
several as to each defendant and related only to the wrongfulness
of its conduct. We accordingly reject plaintiffs’ contention that
Pittsburgh Corning should have been held liable for Celotex’s
punitive damages.
5. Effect of Celotex Bankruptcy
As previously noted, Celotex filed chapter 11 (and was
severed) after all the phase III verdicts were returned (and before
Fibreboard settled). The district court held Pittsburgh Corning
liable for all of Celotex’s fifteen percent causation share (in the
phase I cases; ten percent in the phase III and extrapolation
cases) of actual (not exemplary) damages. Pittsburgh Corning
contends that Celotex’s share should not all be allocated to it but
should instead be ratably redistributed among the settling
defendants (including Fibreboard), Pittsburgh Corning, and any
contributory negligent plaintiff, in the proportion which their
assigned causation percentages bear to each other. Were we to
fashion what we believe would be the most appropriate rule, we
would tend to agree with Pittsburgh Corning. But precedent bars
the way.
68
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984),
which the parties agree and agreed below controls this issue,
provides for joint and several liability as to nonsettled shares,
with the particular view of protecting the plaintiff against an
insolvent, nonsettling defendant. Id. at 429. Celotex was not a
settling defendant. Had Celotex taken bankruptcy before trial, its
comparative causation share would not have been submitted to the
jury, and Pittsburgh Corning could not reduce its liability by
virtue of any claimed partial causation by Celotex. That much is
clear from Duncan, and is not really disputed by Pittsburgh
Corning. See also Gideon v. Johns-Manville Sales Corp., 761 F.2d
1129, 1140-41 (5th Cir. 1985). Likewise, had Celotex taken
bankruptcy after the judgment became final, Pittsburgh Corning
would remain liable for Celotex’s fifteen percent share. That,
too, is clear from Duncan. So why should it make any difference
that Celotex’s bankruptcy came after the verdict but before final
judgment? The answer to that question is that Celotex’s share of
causation, along with Fibreboard’s and Pittsburgh Corning’s and
that of the previously settling defendants and, in some instances,
that of a negligent plaintiff, was determined by the jury, in
percentages that totaled one hundred percent (as the instructions
required). Logically, it should be assumed that proportionate
allocation of Celotex’s percentage share of causation among the
others would produce the same result as if Celotex’s share had
never been submitted at all (as it would not have been if it had
taken bankruptcy prior to trial). For example, if at trial
69
Pittsburgh Corning was assessed 20% causation and Celotex 15% and
others a total of 65%, then if Celotex’s 15% is reallocated,
Pittsburgh Corning’s causation share amounts to some 23.53%
(20/85), not 35% (20% + 15%). That——20/85ths——is what the jury
actually found was Pittsburgh Corning’s proportion of causation
among those whose causation now has legal relevance. However, that
sort of approach was rejected, at least for post-judgment
insolvency, in Duncan, where the Court said:
“An alternative would be to reallocate the insolvent
tortfeasor’s share of liability among all parties whose
actions or products were a cause of the injuries,
including the negligent plaintiff. This suggestion is
attractive and was endorsed by a distinguished Special
Committee of the Tort and Compensation Section of the
State Bar. As a judicial rule, however, reallocating the
insolvent’s share would create problems of post-trial
jurisdiction and finality of judgments.” Id. at 429,
n.9.
The last sentence of this passage suggests that the Duncan court
may have only been speaking to the situation where a nonsettling
bankrupt becomes insolvent after the judgment is final. As for
pretrial insolvency, there would be no need to thus “reallocate,”
as the causative fault of a nonsettling defendant would simply not
have been submitted to the jury. Arguably, then, Duncan does not
necessarily preclude acceptance of Pittsburgh Corning’s argument.
On the other hand, Duncan can also perhaps reasonably be read
as generally rejecting this sort of proportionate reallocation.
That, in substance, is how we read it in Whatley v. Armstrong World
Industries, Inc., 861 F.2d 837 (5th Cir. 1988). In that Texas law
asbestos case, the plaintiff settled before trial with twelve
defendants and proceeded to trial against Raymark alone. The jury
70
found Raymark and 10 of the settling defendants guilty of causative
fault, assigning to Raymark and to 9 of the settling defendants
each a 9.09% causation share and to the tenth settling defendant a
9.1% share, for a total of 100%. Plaintiff’s damages were thus
reduced by 90.01% for purposes of its judgment against Raymark in
the trial court. Plaintiff appealed, urging there was no evidence
to support a finding of causative fault as to several of the ten
settling defendants. We agreed as to 2 of them (who each had 9.09%
shares), and hence reformed the judgment by assigning to Raymark
the entirety of those two settling defendants’ shares, making
Raymark liable for 27.27% (3 x 9.09%) of plaintiff’s total damages.
Id. at 842-44. Although we did not expressly address a
proportional reallocation——under which Raymark’s share would become
not 27.27% but rather 11.11% (9.09/81.82)——our judgment necessarily
rejected it. The dissent expressly contended that Raymark was
entitled to a new trial on allocation, but the majority rejected
that approach, holding that automatic reallocation of the entirety
of the share of each nonliable settling defendant to Raymark was
required as a matter of law by Duncan.63
63
Pittsburgh Corning contends, not without some force, that its
approach is supported by Bowers v. Firestone Tire & Rubber Co., 832
F.2d 64 (5th Cir. 1987). In that Texas law case, Bowers, injured
in a tire explosion, sued Firestone, General Motors (GM), and Budd
Company (Budd). The jury assessed comparative causation 25% to
Bowers, 50% to Firestone, 12½% to GM, and 12½% to Budd, but also
found that Bowers was not at fault. The trial court, because of
the latter finding, disregarded the 25% causation finding as to
Bowers, and proportionally reallocated the causative shares of the
defendants to be 66 2/3% (50/75) for Firestone, 16 2/3% (12½/75)
for GM, and 16 2/3% (12½/75) for Budd. No complaint was made on
appeal to these rulings. Firestone and GM settled with Bowers in
lieu of appealing. Budd appealed, claiming that the evidence
71
We conclude, albeit reluctantly, that Whatley, and its
interpretation of Duncan, compel rejection of Pittsburgh Corning’s
reallocation arguments respecting Celotex.
To the extent that Pittsburgh Corning complains that its
subrogation rights against Celotex are prejudiced, we disagree.
Pittsburgh Corning’s discharge of the judgment will entitle it to
be subrogated to plaintiffs’ rights as against Celotex. See
Gideon, 761 F.2d at 1140-41.
We reject Pittsburgh Corning’s complaints as to the effect on
showed Bowers was negligent as a matter of law, that the weight of
the evidence against Bowers entitled Budd to a new trial on that
issue, and that the form of the contributory negligence special
issues was improper. Bowers v. Firestone Tire & Rubber Co., 800
F.2d 474, 476-78 (5th Cir. 1986). Bowers cross-appealed because
the judgment awarded him nothing for prejudgment interest. We held
Bowers was entitled to prejudgment interest and remanded. Id. at
478-79. On remand, the district court held that Bowers was
entitled to prejudgment interest on only the actual damages for
which Budd was liable (16 2/3% of the total). Bowers again
appealed, claiming not that Budd’s 16 2/3% share of the actual
damages as fixed in the judgment was in error, but rather only that
Bowers was entitled to recover from Budd prejudgment interest on
100% (not, say, 37½%) of the actual damages. Bowers, 832 F.2d at
66-67. We rejected this contention, holding that Firestone and GM
had settled all their liability and that that included prejudgment
interest. We did not address, and there was not before us, any
issue as to the propriety of the 66 2/3%, 16 2/3%, and 16 2/3%
allocation. No claim was made that Bowers was entitled to recover
more than 16 2/3% of his actual damages from Budd——or that Budd
should not have been assessed more than 12½% of the actual damages;
the only issue was whether Bowers was entitled to recover from Budd
prejudgment interest on 100% (not any lesser percentage) of his
actual damages rather than merely on the same percentage thereof as
Budd was liable for. Moreover, the trial court’s action there can
be viewed not so much as a reallocation as an interpretation of the
verdict such that the verdict itself did not find any causative
fault on the part of Bowers. We conclude that Bowers is not
controlling.
72
its liability share of the Celotex chapter 11.64
C. Conclusion on Pittsburgh Corning’s Appeal and
Plaintiffs’ Related Cross-Appeal
In sum, we reverse the judgments in all the 143 phase III
cases and in all the 5 extrapolation cases before us and those
cases are remanded for further proceedings not inconsistent
herewith. As to the judgments against Pittsburgh Corning in the
nine class representative cases before us, we reject all of the
contentions raised on cross-appeal by plaintiffs and, with the
single exception of the date on which prejudgment interest
commences to accrue, we likewise reject all of Pittsburgh Corning’s
contentions on appeal. The nine class representative cases before
us as against Pittsburgh Corning are remanded for the sole purpose
of recalculating prejudgment interest based on the accrual date
specified in this opinion, and in all other respects said nine
judgments against Pittsburgh Corning are affirmed.
II.
ACL APPEAL
A. Introduction
ACL appeals the two judgments rendered against it in two of
the nine class representative cases.65 Plaintiffs cross appeal as
64
Pittsburgh Corning also argues that Fibreboard, because it
settled after Celotex filed for chapter 11, actually settled more
than its causative share as found by the jury. We reject this
contention. A settling defendant cannot settle more than its jury-
determined share. International Proteins Corporation v. Ralston-
Purina, 744 S.W.2d 932 (Tex. 1988).
65
These are the case in which the plaintiffs are the Estate of
Norman Atchison, Sammy Atchison, and Clarence Atchison, and the
case in which the plaintiffs are Lowell Nations and Ann Mae
73
to ACL.
As previously noted, the cases against ACL were bench tried by
virtue of the Foreign Sovereign Immunities Act.
ACL is a Canadian corporation, a majority of whose shares are
owned by the government of Quebec, Canada. ACL mined chrysotile
asbestos in Canada. During the years 1951-1961, ACL sold and
shipped the raw asbestos, minimally processed by it, to Fibreboard
in the United States. The product was considered raw asbestos when
received. Fibreboard refined the raw asbestos, blended it with
asbestos, including amosite asbestos, obtained from other
suppliers, and incorporated it into many asbestos-containing
finished products manufactured and sold by Fibreboard, including
insulation products——the only products at issue in this case——and
other products such as shingles and linoleum.66 There was evidence,
which the district court credited, that during those years 1951-
1961 ACL supplied at least fifty percent of the asbestos used by
Fibreboard. In 1962, Fibreboard ceased its purchases from ACL.
ACL was never involved in the design, manufacture, sale, or
distribution of the insulation products at issue here (or,
apparently, any other asbestos-containing finished products).
The district court ruled that “ACL’s liability to the
plaintiffs arises through the plaintiff’s exposure to Fibreboard
products which contained asbestos supplied by ACL.” But it went on
Nations.
66
The district court held that Texas substantive law applied
to the claims against ACL. No party challenges that ruling on
appeal.
74
to hold that ACL was not liable to any phase III or extrapolation
plaintiff because “ACL was not a party to the Phase II
stipulation,” so nothing in the stipulation could be used against
ACL, and “[t]he Court has heard no independent evidence of exposure
to Fibreboard products from which the Court could make findings to
form a basis of liability”——presumably to any particular phase III
plaintiff or to any extrapolation plaintiff——”against ACL for its
fibre contribution to the Fibreboard insulation products.” The
court did find, however, that “[t]here was sufficient evidence
presented in Phase I to support a finding that the Phase I
plaintiffs were exposed to asbestos supplied by ACL through
exposure to Fibreboard products.” Nevertheless, the court held
that, except for the plaintiffs in the Nations and Atchison cases
(see note 65, supra), limitations barred recovery against ACL by
any other phase I or class representative plaintiff.67
With respect to the two cases in which ACL was held liable,
the following appears to be the district court’s material findings
and conclusions. In its initial findings and conclusions, the
district court stated:
“The evidence also shows that ACL knew or should have
known as early as 1935 that asbestos workers and
household members of asbestos workers were at risk of
getting an asbestos-related injury or disease from the
application, use, or removal of Defendants’ asbestos-
containing insulation products. . . . ACL sold its
product to intermediaries. These intermediaries
67
No complaint is made by any party on appeal as to this
limitations ruling; nor does any party complain on this appeal of
the district court’s dismissal of the conspiracy claims against ACL
or its ruling that the Foreign Sovereign Immunities Act prevented
any claim for exemplary damages against ACL.
75
incorporated the asbestos into finished products and sold
the products to the worksites where the Plaintiffs allege
they were exposed to asbestos. . . . The issue is
whether ACL’s reliance on its intermediaries to pass on
warnings concerning the dangers of asbestos to users of
asbestos products was reasonable. See Alm v. Aluminum
Co. of America, 717 S.W.2d 588, 592 (Tex. 1986) . . . .
In other words, were ACL’s intermediaries capable of
passing on a warning and, if not, did ACL know about that
incapacity? The specific question this Court must answer
is the following: Did ACL have actual knowledge that the
raw asbestos it supplied to its intermediaries was being
made into insulation products and sold by such companies
without an adequate warning? The evidence in the record
establishes that ACL did have such knowledge.
It is apparent that ACL’s liability is derivative of
the intermediaries to which it sold its raw asbestos.
. . . .
The evidence does show that, from 1951 until 1961,
Fibreboard Corporation purchased over 50% of its raw
asbestos from ACL.”68
The district court later reiterated these findings.69 The district
68
The court also found:
“With the exception of Fibreboard’s products, it is not
possible for the Court to determine from the record how
much of ACL’s raw asbestos found its way into the
Defendants’ products to which the class representatives
were exposed. The Court is also persuaded from the
evidence that, with the exception of Fibreboard’s
products, the Plaintiffs will not be able to prove the
amount of ACL fibers contained in the Defendants’
products to which the remaining Plaintiffs were exposed.”
No party has challenged this finding on appeal.
69
The court stated:
“. . . the Court found that ACL knew or should have known
as early as 1935 that asbestos workers and household
members of asbestos workers were at risk of getting an
asbestos-related injury or disease from the application,
use or removal of asbestos containing insulation
products. The Court found that from 1951 until 1961,
Fibreboard Corporation purchased over 50% of its raw
asbestos from ACL. The Court also found that ACL had
76
court determined that ACL’s liability to a particular class
representative plaintiff would be a fraction of one-half the
Fibreboard causative share of that plaintiff’s actual damages as
found by the jury; the fraction would have as its numerator the
number of years after 1951 that that plaintiff was exposed to
Fibreboard’s asbestos-containing insulation products and as its
denominator the total number of that plaintiff’s working years on
which the jury based on its actual damages award to that plaintiff.
ACL’s liability would be joint and several with the liability of
other defendants. The court further ruled that “Fibreboard’s
liability for actual damages [to such a phase I plaintiff] will be
reduced by the amount” of ACL’s liability to that plaintiff.
B. ACL Claims of Error
On appeal, ACL challenges the judgments against it on
essentially two bases. First, it contends, in a variety of
arguments, that as a mere bulk supplier of a raw material later
incorporated into various finished products by another
(Fibreboard), not all of which products are unreasonably dangerous
or defective, it owed no duty to the plaintiffs who were harmed by
exposure to that raw material through exposure to one particular
type of finished product (insulation products). Second, it
contends that any liability it may have is in any event derivative
of that of Fibreboard, so Fibreboard’s settlement discharged it.
actual knowledge that the raw asbestos it supplied to
Fibreboard Corporation was being made into insulation
products and sold by Fibreboard without an adequate
warning.”
77
1. Mere Supplier
The district court seems to have based its liability
determination against ACL on ACL’s failure to warn the users of
Fibreboard insulation products, given that ACL knew such insulation
products were otherwise dangerous and that Fibreboard was not
giving a warning, or an adequate waiving.
The district court did not find that ACL’s raw asbestos was
defective or unreasonably dangerous when sold to Fibreboard, or
that Fibreboard was not a sophisticated and knowledgeable
manufacturer of asbestos containing finished products; nor did the
court find that all or substantially all of the diverse finished
products manufactured by Fibreboard and containing ACL-supplied raw
asbestos were defective or unreasonably dangerous. The only
products at issue here were insulation products, and the district
court imposed liability on Fibreboard and the other manufacturer
defendants because their insulation products were, as the phase I
jury found, “defective and unreasonably dangerous as a result of
not having an adequate warning.” We have held that not all
asbestos-containing finished products are defective or unreasonably
dangerous. See, e.g., Gideon, 761 F.2d at 1143 (“We have refused
to hold asbestos products inherently dangerous”), and 1145 (“As to
Raymark, we are unable to find . . . that the danger created by the
use of its products [asbestos packings] outweighed their utility.
. . all asbestos-containing products cannot be lumped together in
determining their dangerousness”). See also, e.g., Corrosion Proof
Fittings v. EPA, 947 F.2d 1201, 1207 (5th Cir. 1991). If asbestos-
78
containing finished products are not all unreasonably dangerous or
defective, then it necessarily follows that ordinary raw asbestos
sold to a sophisticated and knowledgeable manufacturer of such
products is not of itself defective or unreasonably dangerous. Nor
did the district court find that ACL failed to adequately warn
Fibreboard or that Fibreboard was not fully knowledgeable of the
relevant risks posed by its asbestos-containing insulation
products. Indeed, the evidence virtually compels the conclusion
that Fibreboard was so aware. That being the case, any failure to
warn Fibreboard would be clearly immaterial. See, e.g.,
Restatement Third, Torts: Products Liability (1997) § 2, comment
i (“Notwithstanding the defective condition of the product in the
absence of special warnings, if a particular user or consumer would
have decided to use or consume even if warned, the lack of warnings
is not a legal cause of the plaintiff’s harm”).70
In imposing liability on ACL, the district court relied on Alm
v. Aluminum Co. of America, 717 S.W.2d 588 (Tex. 1986).71 That case
was a suit by James Alm for personal injuries suffered when the cap
on a bottle of 7-Up he had purchased exploded off the bottle and
70
See also id. comment j, explaining that a product seller is
not liable for failure to warn of risks “that should be obvious to,
or generally known by, foreseeable product users” because “[w]hen
a risk is obvious or generally known, the prospective addressee of
a warning will or should already know of its existence. Warning of
an obvious or generally known risk in most instances would not
provide an effective additional measure of safety.” It is obvious
here that no warning ACL failed to give Fibreboard would have
provided any “effective additional measure of safety” for
plaintiffs.
71
See also Aluminum Co. of American v. Alm, 785 S.W.2d 137
(Tex. 1990) (appeal following remand to court of appeals).
79
struck him in the eye. The cap was put on the bottle by JFW
Enterprises, Inc. (JFW) utilizing a capping machine purchased by it
from Alcoa, the machine’s manufacturer. The retailer from whom Alm
purchased the bottle had in turn purchased it from JFW. Alm at
589-90. “Alcoa supplied a capping machine to JFW. Alcoa knew that
through use its capping machine would go out of adjustment, thereby
causing misapplied caps. And Alcoa knew of the risk of personal
injury from bottle cap blow off. . . .” Id. at 591. Alm sued
Alcoa, JFW, and the retailer, but the latter two settled. The jury
returned a general finding of negligence and proximate cause
against Alcoa and JFW each. One allegation of negligence as
against Alcoa “was that Alcoa’s warning to JFW was inadequate.”
Id. at 593. Alcoa appealed the judgment on the verdict against it,
and the court of appeals held for Alcoa, reasoning that the jury’s
finding that JFW was negligent was an implied finding that Alcoa
had adequately warned JFW. Id. at 592. On Alm’s appeal to the
Texas Supreme Court, that court disagreed because “the jury could
have determined that JFW was negligent without believing that Alcoa
adequately warned JFW of the hazards associated with bottle cap
blow off. There were, after all, other allegations of negligence
against JFW.” Id. The Supreme Court went on to review the
evidence concerning whether Alcoa adequately warned JFW and stated
“This evidence clearly constitutes some evidence, certainly more
than a scintilla, that Alcoa inadequately warned JFW.” Id. at 594.
The Supreme Court also called attention to evidence that JFW “was
not familiar with the hazards associated with misapplied caps.”
80
Id. It remanded the case to the court of appeals “for it to
consider Alcoa’s factual insufficiency points regarding the
adequacy of its warning of the hazard of cap blow off to JFW.” Id.
at 595.
While Alm contains some broad dicta concerning when one in a
position analogous to Alcoa’s might be obligated to warn consumers
despite warning a party such as JFW, its clear holding is that an
adequate warning to JFW would have protected Alcoa. Obviously
Alcoa did not——indeed could not have——warned Alm, or other
consumers, and there is nothing to suggest the contrary (nor,
plainly, did JFW warn anyone). If failure to warn Alm (or
consumers generally) could alone have supported Alcoa’s liability,
there would have been no occasion to remand for a determination
concerning the adequacy of Alcoa’s warning to JFW. Moreover, it is
clear that there was sufficient evidence that JFW was not otherwise
knowledgeable of the relevant hazards.
Alm is thus distinguishable from the case at bar, in which a
supplier of raw material to a sophisticated and knowledgeable
manufacturer of diverse finished products which incorporate that
material is held liable for failure to warn users of one type of
such finished products of the dangers posed by the raw material’s
presence in the product. The general rule in this connection is
stated in Restatement Third, Torts: Products Liability (1997) in
the comments to its section 5. Comment a to section 5 states in
relevant part:
“Product components include raw materials, bulk products,
and other constituent products sold for integration into
81
other products. Some components, such as raw materials,
valves, or switches, have no functional capabilities
unless integrated into other products. Other components,
such as a truck chassis or a multi-functional machine,
function on their own but still may be utilized in a
variety of ways by assemblers of other products.
As a general rule, component sellers should not be
liable when the component itself is not defective as
defined in this Chapter. . . .
The refusal to impose liability on sellers of
nondefective components is expressed in various ways,
such as the ‘raw material supplier defense’ or the ‘bulk
sales/sophisticated purchaser rule.’ However expressed,
these formulations recognize that component sellers who
do not participate in the integration of the component
into the design of the product should not be liable
merely because the integration of the component causes
the product to become dangerously defective. This
Section subjects component sellers to liability when the
components themselves are defective or when component
providers substantially participate in the integration of
components into the design of the other products.”
Illustration 4 to section 5 gives an example which closely
parallels ACL’s situation:
“4. ABC Foam Co. [here ACL] manufactures bulk foam
with many different uses. XYZ Co. [here Fibreboard]
purchases bulk foam from ABC, then processes the foam and
incorporates the processed foam in the manufacture of
disposable dishware. ABC becomes aware that XYZ is using
processed foam in the dishware. ABC and XYZ are both
aware that there is a potential danger that processed
foam may cause allergic skin reactions for some users.
ABC is aware that XYZ is not warning consumers of this
potential problem. ABC has no duty to warn XYZ or
ultimate consumers of the dangers attendant to use of the
processed foam for disposable dishware. The foam sold by
ABC is not defective in itself as defined in this
Chapter. A supplier of a component has no duty to warn
a knowledgeable buyer of risks attendant to special
application of its products when integrated into
another’s product. ABC did not participate in the design
of the disposable dishware manufactured by XYZ, and is
thus not subject to liability under Subsection (b).”
(Emphasis added).
Comment c to section 5 focuses specifically on raw materials
82
and includes the following:
“c. Raw Materials. Product components include raw
materials. See Comment a. Thus, when raw materials are
contaminated or otherwise defective within the meaning of
§ 2(a), the seller of the raw materials is subject to
liability for harm caused by such defects. Regarding the
seller’s exposure to liability for defective design, a
basic raw material such as sand, gravel, or kerosene
cannot be defectively designed. Inappropriate decisions
regarding the use of such materials are not attributable
to the supplier of the raw materials but rather to the
fabricator that puts them to improper use. The
manufacturer of the integrated product has a significant
comparative advantage regarding selection of materials to
be used. Accordingly, raw-materials sellers are not
subject to liability for harm caused by defective design
of the end-product. The same considerations apply to
failure-to-warn claims against sellers of raw materials.
To impose a duty to warn would require the seller to
develop expertise regarding a multitude of different end-
products and to investigate the actual use of raw
materials by manufacturers over whom the supplier has no
control. Courts uniformly refuse to impose such an
onerous duty to warn.” (Emphasis added).
Illustration 5 to section 5 is also parallel to ACL’s case here,
viz:
“5. LMN Sand Co. [here ACL] sells sand in bulk.
ABC Construction Co. [here Fibreboard] purchases sand to
use in mixing cement. LMN is aware that the improper
mixture of its sand with other ingredients can cause
cement to crack. ABC utilizes LMN’s sand to form a
cement supporting column in a building. As a result of
improper mixture the cement column cracks and gives way
during a mild earthquake and causes injury to the
building’s occupants. LMN is not liable to the injured
occupants. The sand sold by LMN is not itself defective
under §§ 1-4. LMN has no duty to warn ABC about
improperly mixing sand for use in cement. LMN did not
participate in ABC’s design of the cement and is not
subject to liability for harm caused by the sand as
integrated into the cement.”
We observe that ACL’s asbestos is clearly not defective for
these purposes. Under section 2 of the Restatement Third, a
product is defective if it contains a manufacturing defect or a
83
design defect or because of inadequate warnings or instructions.
A manufacturing defect exists “when the product departs from its
intended design.” Id. § 2(a). There is no evidence or finding
that this was the case with ACL’s raw asbestos, or that it was any
different from any other chrysotile asbestos. Comment c to section
5, above quoted, makes it clear that neither design defect (“a
basic raw material . . . cannot be defectively designed”) nor
failure to warn or instruct (“Courts uniformly refuse to impose
such an onerous duty to warn”) apply to ACL and its raw asbestos.
Comment b, directed at product components, contains a caveat,
stating:
“Courts have not yet confronted the question of whether,
in combination, factors such as the component purchaser’s
lack of expertise and ignorance of the risks of
integrating the component into the purchaser’s product,
and the component supplier’s knowledge of both the
relevant risks and the purchaser’s ignorance thereof,
give rise to a duty on the part of the component supplier
to warn of risks attending integration of the component
into the purchaser’s product.” (Emphasis added).72
The hypothetical situation given in the above quotation from
Comment b is in some respects arguably parallel to Alm, if Alcoa
there were considered the component supplier and JFW the component
purchaser, as Alcoa was knowledgeable of the risks and JFW was not,
and Alcoa knew or should have known JFW was not but failed to warn
JFW. Here, however, there not only is no finding that ACL failed
to warn Fibreboard, but it is also clear that Fibreboard was not
72
Comment c, directed at raw materials, references this caveat,
stating: “For a consideration of whether special circumstances may
give rise to a duty on the part of raw-material sellers to warn of
risks attending integration of raw materials with other components,
see Comment b.”
84
ignorant of the risks and did not lack expertise (and there is no
contrary finding). Moreover, Alm is also distinguishable (and the
case against Alcoa there stronger than that against nondefective
component suppliers) because Alcoa’s capping machine and system
were defective and were so for the only purpose for which they were
intended or usable, namely putting caps on bottles. By contrast,
here ACL’s raw asbestos was not itself defective, and it could be
and was incorporated by Fibreboard into some of its nondefective
finished products (as well being incorporated into Fibreboard
insulation products).
We believe that the Texas Supreme Court would follow the
Restatement Third, Torts: Products Liability § 5 in this respect.
Cf. Klem v. E.I. Dupont De Nemours Co., 19 F.3d 997 (5th Cir. 1994)
(Louisiana law). The Texas Supreme Court has long looked to the
Restatement of Torts as an influential guide in products liability
law,73 and has recently heavily relied on the refinements in such
law reflected in Restatement Third, Torts: Products Liability.
See Uniroyal Goodrich Tire Company v. Martinez, ___ S.W.2d ___, 41
Tex. Sup. Ct. J. 1047, 1998 WL 352929 (Tex. 1998).
Applying section 5 of the Restatement of Torts, Third:
Products Liability, as we believe the Texas Supreme Court would, we
hold that no basis has been demonstrated to hold ACL liable. Its
raw asbestos, as sold to Fibreboard, was not adulterated or other
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See, e.g., McKisson v. Sales Affiliates, Inc., 416 S.W.2d
787, 788-89 (Tex. 1967); Caterpillar, Inc. v. Shears, 911 S.W.2d
379, 381-83 & nn.2 & 3 (Tex. 1995) (also citing tentative draft of
Restatement Third, Torts); Firestone Steel Products Co. v. Barajas,
927 S.W.2d 608, 613, 616 (Tex. 1996).
85
than normal chrysotile asbestos, and it was not itself defective in
the sense of section 2 of the Restatement Torts, Third; Fibreboard
was a sophisticated, expert, and knowledgeable manufacturer who
produced diverse finished products into which it incorporated,
after refining it, the raw asbestos purchased from ACL (and from
other suppliers); not all of such finished products are shown to be
defective; there is no basis for finding, and no finding, that
Fibreboard either did not know exactly what it was getting from ACL
or that it was unaware of the asbestos-related risks presented by
its finished insulation products; ACL had no role in the design,
manufacture, sale, or distribution of the insulation products at
issue here (or, apparently, any other Fibreboard-finished
products); ACL and Fibreboard were not affiliated; and, there is no
practical way ACL could have warned plaintiffs of the risks posed
by Fibreboard insulation products. These factors dictate a finding
of no liability on the part of ACL to plaintiffs.
Accordingly, the judgment against ACL in the Atchison and
Nations cases is reversed and judgment is here rendered that the
plaintiffs in those cases take nothing from ACL.
2. Fibreboard Settlement
Because of our above holding, ACL’s alternative contention
that any liability it might have was discharged by the Fibreboard
settlement becomes moot, and we pretermit consideration of it.
C. Cross-Appeal
The contentions raised in plaintiffs’ cross-appeal as to ACL
are all rendered moot by our above holding that ACL is in any event
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not liable, and we accordingly pretermit consideration of them.
III.
CONCLUSION
In conclusion, on Pittsburgh Corning’s appeal we reverse the
judgments in all the 143 phase III cases and in all 5 extrapolation
cases that are before us and such cases are remanded for further
proceedings not inconsistent herewith. As to Pittsburgh Corning’s
appeal of the judgments against it in the nine phase I cases before
us, we reject all of its contentions on appeal except that relating
to the date on which prejudgment interest commences to accrue; as
to these same nine cases, we reject plaintiffs’ cross-appeal
against Pittsburgh Corning; and these nine cases, so far as they
concern Pittsburgh Corning, are remanded solely to amend the
judgments therein against Pittsburgh Corning so as to reflect
prejudgment interest calculated from the appropriate accrual date
as provided herein. With respect to ACL’s appeal of the judgments
against it in the Nations and Atchison cases (two of the class
representative phase I cases), we reverse the judgments against ACL
and render judgment in its favor; and we reject plaintiffs’ cross-
appeal as to ACL.74
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We accept all the Fed. R. App. R. 28(j) letters previously
submitted. We GRANT the following motions: Pittsburgh Corning’s
motion to file three volumes of supplemental transcript excerpts
related to claims of alleged trial bias, passion, and prejudice;
motion of ACL to file corrected brief; and Pittsburgh Corning’s
motion to withdraw its motion to certify questions to the Supreme
Court of Texas. All other pending, undisposed of motions are
DENIED.
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REVERSED and REMANDED in part; VACATED and REMANDED in part;
REVERSED and RENDERED in part.
ENDRECORD
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REYNALDO G. GARZA, Circuit Judge, specially concurring:
I write separately to concur in the excellent opinion in this case, but also to add some of
my own comments and thoughts about these consolidated cases, which have burdened our judicial
system for so many years. In particular, I wish to express my concerns raised by Pittsburgh
Corning’s attack on Judge Parker’s ingenious but, unfortunately, legally deficient trial plan. This
case is a striking example of the crisis presented by the state of asbestos litigation in our judicial
system; therefore, I am also writing separately to further urge upon Congress the wisdom and
necessity of a legislative solution.
Texas law simply provides no way around Pittsburgh Corning’s right to a jury trial as to
causation or the requirement that causation and damages be determined as to individuals and not
groups. See In re Fibreboard Corp., 893 F.2d 706, 711 (5th Cir. 1990) (stating that policy
choices of State of Texas in defining “the duty owed by manufacturers and suppliers of products
to consumers . . . are reflected in the requirement that a plaintiff prove both causation and
damage. . . . These elements focus upon individuals, not groups.”). If Judge Parker had
conducted phase II according to his plan, however, rather than replacing phase II with the phase
II stipulation, the only issue before us today would be the propriety of the phase III damages
determinations. Of course, the majority opinion correctly explains that these damages
determinations were fatally deficient under Texas law and the Seventh Amendment as to the more
than 2,000 “extrapolation” cases; however, these “extrapolated” damages determinations are
valuable in and of themselves as indications of an appropriate settlement range for each of the five
disease categories involved.
It is clear that the enigma of asbestos litigation is not readily susceptible to resolution
under the standards and practices representative of traditional tort litigation. See Jenkins v.
Raymark Industries, 782 F.2d 468, 470 (5th Cir. 1986) (“Courts, including those in our own
circuit, have been ill-equipped to handle this ‘avalanche of litigation.’ . . . Our numerous opinions
in asbestos-related cases have repeatedly recognized the dilemma confronting our trial courts, and
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expressed concern about the mounting backlog of cases and inevitable, lengthy trial delays.”); see
also Lester Brickman, The Asbestos Litigation Crisis: Is There a Need for an Administrative
Alternative?, 13 CARDOZO L. REV. 1819, 1841 (1992) (arguing that “Appellate opinions arguably
applying a ‘there is law and there is asbestos law’ doctrine can be found.”). In 1991, the Judicial
Conference Ad Hoc Committee on Asbestos Litigation (the “Ad Hoc Committee”), whose
members were appointed by Chief Justice Rehnquist, issued a report noting that:
What has been a frustrating problem is becoming a disaster of major proportions to both
the victims and the producers of asbestos products, which the courts are ill-equipped to
meet effectively.
***
The most objectionable aspects of asbestos litigation can be briefly summarized: dockets
in both federal and state courts continue to grow; long delays are routine; trials are too
long; the same issues are litigated over and over; transaction costs exceed the victims’
recovery by nearly two to one; exhaustion of assets threatens and distorts the process;
and future claimants may lose altogether.
REPORT OF THE JUDICIAL CONFERENCE AD HOC COMMITTEE ON ASBESTOS LITIGATION 2-
3 (Mar. 1991) [hereinafter AD HOC COMMITTEE REPORT]. The history of this case, up to and
including our resolution of this appeal (which is dictated by binding authority) is a perfect
illustration of the incompatibility of asbestos litigation and traditional tort litigation procedures.
This case also illustrates the need for a legislative response to the asbestos litigation crisis.
As the majority opinion in this case notes, there is a dire need for legislative intervention in the
arena of the asbestos litigation crisis. In its report, the Ad Hoc Committee argued that effective
reform of the asbestos litigation crisis requires federal legislation creating a national asbestos
dispute-resolution scheme. AD HOC COMMITTEE REPORT 3, 27-35. The Judicial Conference of
the Untied States adopted the Ad Hoc Committee’s recommendations, and urged Congress to
“consider a national legislative scheme to come to grips with the impending disaster relating to
resolution of asbestos personnel injury disputes, with the objectives of achieving timely,
appropriate compensation of present and future asbestos victims and of maximizing the prospects
for the economic survival and viability of defendants.” REPORT OF THE PROCEEDINGS OF THE
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JUDICIAL CONFERENCE OF THE UNITED STATES 33 (Mar. 12, 1991). More recently, the Supreme
Court discussed the Ad Hoc Committee’s report and the Judicial Conference’s recommendations
to Congress, noting that “[t]o this date [June 25, 1997], no congressional response has emerged.”
Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2237-38 (1997).
As the majority opinion convincingly establishes, the trial plan which the district court
implemented below was legally deficient. As to the 160 phase III “sample” plaintiffs, who tried
their cases to a jury regarding damages, the trial plan was inconsistent with the requirement of
Texas law that determinations of causation be made as to “individuals, not groups.” See
Fibreboard, 893 F.2d at 711. The stipulation that replaced phase II established only that “some”
individuals working in each of the listed crafts during each of the relevant time periods at each of
the 22 work sites were “exposed to asbestos [with] sufficient length and intensity to cause
pulmonary asbestosis of varying degrees,” and that a Pittsburgh Corning asbestos product was
present at those sites during two of the relevant time periods. As such, the stipulation was not
sufficiently individualized, as it would have been if Pittsburgh Corning had stipulated that “all” of
the plaintiffs were so exposed.
As to the “extrapolation” plaintiffs, the same rationale applies with respect to the issue of
causation. Additionally, however, the extrapolation cases were deficient with regard to the
determination of actual damages. In contrast to the “sample” phase III cases, no jury ever
considered the “extrapolation” cases, and neither the court nor a jury made any individualized
determinations of actual damages, as required by Texas law. See Fibreboard, 893 F.2d at 711. It
is for these reasons that we are reversing the judgments in the phase III “sample” cases and the
“extrapolation” cases.
It appears, however, that Judge Parker’s phase II plan would have been sufficient if he had
implemented the plan rather than disposing of it with the phase II stipulation. Under the plan,
phase II would have addressed exposure on a craft and work site basis during the relevant time
periods. A jury would have made exposure findings regarding specific work sites, crafts, and time
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periods. The jury would have heard evidence regarding the presence of the defendants’ asbestos
products and asbestos dust at each work site. The jury would also have heard evidence about the
nature of the different crafts at each work site and the relationship of those crafts to asbestos.
Additionally, the jury would have heard evidence regarding working conditions at each work site
and the relationship of those conditions to the defendants’ products.
The presentation of such evidence would clearly be sufficient for a reasonable jury to
conclude that the presence of the defendants’ products caused injuries to individuals working in
certain crafts at certain work sites during certain time periods, and how long of a time period
would be sufficient to support such causation. The jury would have also heard evidence regarding
the presence of the defendants’ products at the relevant work sites during the relevant time
periods. Based on that evidence, the jury would have apportioned responsibility among the
settling and non-settling defendants. The court would then make a determination of which
plaintiffs worked for sufficient periods of time at each work site and which plaintiffs were
members of each craft at those work sites.
The evidence, if presented as the plan anticipated, would satisfy the plaintiffs’ burden of
proof, and would support a reasonable jury’s determination of causation specific to craft, work
site, and relevant time period. Such evidence would also support a determination of the length of
time on the job required to support causation. As such, the court’s task of simply plugging each
plaintiff into a craft, work site, and time period would be a sufficiently individualized
determination of causation for the district court to grant judgment as to the causation issue.75
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If the defendants’ contested causation as to any particular
plaintiff (for example, if a particular plaintiff could have
sustained his or her injury, in whole or in part, as a result of
excessive smoking), they could file a motion opposing judgment as
to that plaintiff with supporting affidavits discussing the
specific evidence that should preclude judgment as to that
plaintiff. Although this process could, potentially, still result
in the necessity of several plaintiff-specific determinations, it
would at least dispose of the causation issue as to many of the
plaintiffs. Alternatively, and perhaps preferably, if the
(continued...)
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The question of damages, however, is another story. The inescapable reality is that Texas
law requires that determinations of damages be made as to individuals, not as to groups, and this
Court is powerless to alter that reality. As stated, the Ad Hoc Committee’s report concluded that
the only real solution to the problems posed by the asbestos litigation crisis lies with Congress,
but the Ad Hoc Committee continued that “[a]t the same time, or failing congressional action, the
federal judiciary must itself act now to achieve the best performance possible from the system
under current law.” AD HOC COMMITTEE REPORT 4. Judge Parker made a valiant and admirable
effort to take such action. Unfortunately, however, this Court is without the power to sanction or
condone his approach.
Although resolution of these cases, under the current state of law, would require an
inordinate number of damages trials, the parties involved should not lightly cast aside the figures
that Judge Parker arrived at in phase III as representative of actual damages in each category of
disease. In arriving at these figures, Judge Parker tried 160 individual “sample” cases from each
of the five disease categories represented by the pool of plaintiffs. The two juries that tried those
160 cases determined only whether each particular “sample” plaintiff suffered from an asbestos-
related disease or injury and, if so, the amount of damages incurred. Following the trials, Judge
Parker held a one day hearing after which he determined that the “sample” cases within each
disease category were reliably representative of the more than 2,000 remaining
“extrapolation” cases. Judge Parker then assigned each “extrapolation” case to a disease category
and awarded actual damages equal to the average of the awards in the “sample” cases involving
the same disease.
In sum, the judiciary’s utter inability to adequately address the seemingly insurmountable
(...continued)
defendants contend that a plaintiff’s injury was the result of
something other than the defendants’ products, they could address
that contention during the damages phase, at which time (as the
majority opinion in this case makes clear) a jury must determine
each plaintiffs’ damages on an individualized basis.
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problems posed by asbestos litigation further underscores the need for legislative action.
Nevertheless, although the procedure outlined above does not satisfy the demands of Texas law
requiring individual determinations of damages, the parties should take notice of these figures as
representative of an appropriate settlement range within each disease category. Such notice is
particularly advisable for Pittsburgh Corning, against whom the phase I jury awarded a three to
one punitive damages multiplier (i.e., $3.00 of punitive damages for every $1.00 of actual
damages).
I tend to agree with Judge Thomas F. Hogan’s Separate Dissenting Statement to the Ad
Hoc Committee’s report.76 Judge Thomas acknowledged the “national crisis involving asbestos
litigation,” but expressed concern with the Ad Hoc Committee’s recommendation that, if
Congress chose not to accept the Committee’s recommendation of a national legislative scheme
to deal with asbestos claims, Congress should consider legislation to expressly authorize the
consolidation and collective trial of asbestos cases in order to expedite disposition of cases in
federal courts with heavy asbestos personal injury caseloads. AD HOC COMMITTEE REPORT 41-43
(Separate Dissenting Statement of Judge Thomas F. Hogan). Judge Hogan stated:
My concern is the underlying premise of the report regarding the use of class action
“collective” trials (trials by aggregation of claims) of asbestos cases. It is a novel and
radical procedure that has never been accepted by an appellate court. It has been
challenged as being constitutionally suspect in denying defendants their due process and
jury trial rights as to individualized claimants, as well as conflicting with the court’s
obligations to apply state law. . . .
This recommendation, aside from the constitutional question, as a practical matter
may well prove impossible to execute. See generally, the reference to the Cimino trial
(passim) [referring, ironically, to the present case]. Trial by aggregation of claims and
then the extrapolation of the damages by the court has been recognized by the Committee
itself as being “the most radical solution . . . .” See Report at 21. As mentioned, it has
never been approved by any appellate court.
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The members of the Ad Hoc Committee were Judge Thomas M.
Reavley (Chairman), Judge David D. Dowd, Jr., Judge Thomas F. Hogan
(who filed a Separate Dissenting Statement), Judge John F. Nangle,
Judge Robert M. Parker (the same Judge Parker who tried the cases
before us on this appeal, except that he is now a Fifth Circuit
Judge) and Judge Sam C. Pointer, Jr.
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Id. at 41.
Our decision in this case shows that Judge Hogan’s prophecy rang true. Judge Hogan did
agree that “a national solution is the only answer.” Id. at 42. He continued, however, that
“[s]ince the aggregation or collective trial method is highly questionable, a logical and viable
solution would be the passage by Congress of an administrative claims procedure similar to the
Black Lung legislation.” Id. Judge Hogan concluded:
There already exists a model to follow in the Black Lung program. If there is to be any
Conference action, it is hoped the Conference would suggest that Congress consider such
an approach.
Id. at 43.
I agree with Judge Hogan’s comments. Obviously, the type of consolidation attempted in
this case is unworkable in practice. Fibreboard and the majority opinion in this case make that
much abundantly clear. As I have discussed, it is also apparent that the federal judiciary has not
been able to formulate an appropriate response to the asbestos litigation crisis. In fact, this case
suggests that we may be without the power to do so.
As such, there must be some alternative solution. The power to devise such a solution lies
solely in the halls of Congress. Although I do not express any opinion on the strengths and
weaknesses of the Federal Black Lung Program as implemented, the underlying concept of setting
up an administrative claims procedure to handle a massive amount of claims for disabling
employment-related impairments makes sense in the context of dealing with claims for asbestos-
related injuries. Congress promulgated the Black Lung Program to rectify the historical lack of
adequate state compensatory schemes for miners suffering from pneumoconiosis. 30 U.S.C. §
901 (1998). Similarly, asbestos-related injuries have presented the courts with an unmanageable
situation, which has resulted in an inadequate method of compensation for such injuries, both
from the plaintiffs’ and defendants’ point of view. As such, I join Judge Hogan in urging
Congress to formulate an administrative claim procedure for dealing with claims for asbestos-
related injuries modeled on the Black Lung legislation.
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In conclusion, I agree with the rationale and the result which the majority opinion has
reached. Our hands are tied by the United States Constitution. We must respect Texas law and
the Seventh Amendment. As the Ad Hoc Committee noted:
The picture is not a pretty one. Decisions concerning thousands of deaths, millions of
injuries, and billions of dollars are entangled in a litigation system whose strengths have
increasingly been overshadowed by its weaknesses.
AD HOC COMMITTEE REPORT 2 (quoting statements of the Institute for Civil Justice of the Rand
Corporation). This statement still holds true; however, the picture is much worse today. I
implore Congress to heed the plight of the judiciary and the thousands of individuals and
corporations involved. Congress alone has the power to devise a system to even attempt to
alleviate these most pressing of concerns. Congress utilized this power in response to the plight
of the coal miners. Simply stated, it is Congress’ duty and responsibility to do the same in
response to the asbestos litigation crisis.
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