Barnes v. Owens-Corning Fiberglas Corp. ( 2000 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0027P (6th Cir.)
File Name: 00a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
;

DEBBIE ROGERS BARNES,

LISA BEAN, JOHN EDWARD

ROGERS, Co-Executors of the

Nos. 98-5371/5376
Estate of Edward Doyle

Rogers (98-5371); DIANE >
BECKMANN, Individually and 


as the Executrix of the Estate

of Leroy Beckmann

(98-5376),

Plaintiffs-Appellants,



v.


OWENS-CORNING FIBERGLAS
Defendant-Appellee. 
CORPORATION,

1
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 92-00191; 90-00673—Edward H. Johnstone,
District Judge.
Argued: June 18, 1999
Decided and Filed: January 18, 2000
1
2 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376
Fiberglas Corp.
Before: KRUPANSKY, RYAN, and SUHRHEINRICH,
Circuit Judges.
_________________
COUNSEL
ARGUED: Kenneth L. Sales, SEGAL, SALES, STEWART,
CUTLER & TILLMAN, Louisville, Kentucky, for
Appellants. John L. Dotson, O’BRYAN, BROWN &
TONER, Louisville, Kentucky, for Appellee. ON BRIEF:
Kenneth L. Sales, Joseph D. Satterley, Kathleen M. Flynn,
SEGAL, SALES, STEWART, CUTLER & TILLMAN,
Louisville, Kentucky, Marc P. Weingarten, GREITZER &
LOCKS, Philadelphia, Pennsylvania, for Appellants. Donald
K. Brown, Jr., James P. Grohman, O’BRYAN, BROWN &
TONER, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
RYAN, Circuit Judge. In these asbestos exposure wrongful
death cases, the plaintiffs, Barnes and Beckmann, fiduciaries
for their respective decedents’ estates, obtained separate jury
verdicts against Owens-Corning Fiberglas Corporation,
although in a consolidated trial. The jury apportioned liability
against Owens-Corning at 2% in Barnes’s case and 5% in
Beckmann’s. Both plaintiffs appeal and submit the following
three issues for our review:
• Whether the district court abused its discretion in
denying the plaintiffs’ motions for a new trial on the
basis that the jury’s apportionment of fault was against
the great weight of the evidence;
• Whether the district court improperly instructed the
jury with regard to allocation of fault; and
26 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 3
Fiberglas Corp. Fiberglas Corp.
Owens-Corning that the complaints introduced in evidence • Whether the district court erred in allowing Owens-
are relevant to causation and sufficiently probative to survive Corning to read portions of the plaintiffs’ complaints
Rule 403 scrutiny, although the district court’s decision not to into evidence.
exclude nonparty manufacturers had some potential for
confusing the jury. We do not believe the jury was confused For the following reasons, we affirm the district court’s
given the paucity of the evidence of Owens-Corning’s fault judgment in each case.
found in these cases and given further its decision to allocate
40% liability in the Becht case. In Williams, 790 F.2d 552, I.
another toxic tort case involving toxic chemical exposure
rather than asbestos exposure, this court reversed the district The decedents in these two cases, Leroy Beckmann and
court’s decision not to allow into evidence a prior complaint Edward D. Rogers, worked with asbestos for many years.
claiming the injuries alleged were caused by a different Beckmann worked for Anaconda Aluminum in Louisville,
defendant. There is no principled reason to treat differently Kentucky, from 1963 to 1973 as a general laborer and a
the allegations here, that other defendants were jointly liable. maintenance machinist, and at Brown & Williamson from
Moreover, in Williams, we rejected a similar argument, 1973 to 1982 as a maintenance worker. Rogers worked in the
namely, that the complaints were merely to preserve the whiskey filtration department at Barton Brands Distillery in
ability to discover the proper defendant: “The plaintiff's Kentucky from 1959 to 1990. Both men died of
argument that the statements were made merely to preserve mesothelioma, an asbestos-related form of lung cancer. The
legal rights may be quite persuasive, but should have been plaintiffs are the personal representatives for their respective
made to the jury.” Id. at 556. decedent’s estates. For the sake of clarity, we refer to the
“Barnes” case hereafter by the name of the decedent,
IV. “Rogers.”
For the foregoing reasons, we AFFIRM the judgment The Beckmann estate sued a total of 18 manufacturers and
entered by the district court in each case. distributors of asbestos-containing products, while the Rogers
estate sued a total of 13. One manufacturer and distributor,
Johns-Manville, was joined as a third-party defendant in both
cases. Owens-Corning was the only defendant who appeared
at trial to defend, the plaintiffs having settled or dismissed
their claims against each of the other defendants.
At trial, the district court, over the plaintiffs’ objections,
permitted Owens-Corning to introduce in evidence the
complaints filed by each plaintiff and read the names of all
the original defendants to the jury. The plaintiffs now claim
error. At the close of the case, the court instructed the jury to
apportion liability pursuant to Ky. Rev. Stat. Ann. § 411.182,
which requires, “[i]n all tort actions . . . involving fault of
more than one party,” apportionment of liability among all
“part[ies] to the action, including third-party defendants and
4 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 25
Fiberglas Corp. Fiberglas Corp.
persons . . . released” by “[a] release, covenant not to sue, or In a diversity case, the admissibility of evidence is a
similar agreement.” In the court’s instructions to the jury procedural matter governed by federal law. American Title
regarding apportionment of liability, the jurors were told to Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988).
indicate the percentages of the total fault in three categories, “Pleadings in a prior case may be used as evidentiary
as follows: (1) the percentage of fault attributable to the admissions.” Williams v. Union Carbide Corp., 790 F.2d
decedents; (2) the percentage of fault attributable to Owens- 552, 556 (6th Cir. 1986). The Ninth Circuit gave the
Corning; and (3) the percentage of fault attributable to “others following analysis of the nature of factual assertions
which may include,” and then the court named and the verdict contained in pleadings:
forms listed 13 asbestos manufacturers in the Rogers case and
15 in the Beckmann case. “[U]nder federal law, stipulations and admissions in the
pleadings are generally binding on the parties and the
The plaintiffs claim that one of the 15 in the Beckmann Court. Not only are such admissions and stipulations
case, Anchor Packing Co., was voluntarily dismissed, but we binding before the trial court, but they are binding on
find nothing in the record indicating the dismissal of Anchor appeal as well.” Ferguson v. Neighborhood Housing
Packing. Contrary to the plaintiffs’ assertions, a company Services, 780 F.2d 549, 551 (6th Cir.1986) (citations
called Foster Wheeler never appeared on either verdict form, omitted). “Judicial admissions are formal admissions in
and we find nothing in the briefs or the record indicating that the pleadings which have the effect of withdrawing a fact
Foster Wheeler and Anchor Packing are the same company. from issue and dispensing wholly with the need for proof
of the fact.” In re Fordson Engineering Corp., 25 B.R.
Two other companies, Garlock, Inc. and Keene Building 506, 509 (Bankr. E.D. Mich.1982). Factual assertions in
Products Corporation, were never defendants in the pleadings and pretrial orders, unless amended, are
Beckmann case, although they were defendants in the Rogers considered judicial admissions conclusively binding on
case, and did not enter into any settlement agreement with the the party who made them. See White v. Arco/Polymers,
Beckmann plaintiff. In Rogers, two of the 13 corporations Inc., 720 F.2d 1391, 1396 (5th Cir. 1983).
listed in the “others” category, Celotex Corporation and
Eagle-Picher Industries, Inc., were never defendants in the American Title, 861 F.2d at 226. Of course, under Fed. R.
case, although they were defendants in Beckmann, and did not Evid. 801(d)(2)(A), a party’s own statement that is offered
enter into any settlement agreement with the Rogers plaintiff. against him is “not hearsay.” Such statements are admissible
if they are relevant under Fed. R. Evid. 401 and their
The jury awarded the plaintiffs substantial damages in both probative value is not substantially outweighed by any
cases, $1.76 million in Beckmann and $942,000 in Rogers. prejudicial effect under Fed. R. Evid. 403.
However, the jury apportioned only 5% of the liability to
Owens-Corning in Beckmann and only 2% in Rogers. In a As a general matter, complaints are admissible under Rule
third consolidated case that is the subject of a separate appeal 801(d)(2)(a) and specifically under the case law set forth in
to this court, Becht v. Owens-Corning, No. 98-5387, the jury American Title. While the naming of the other defendants is
awarded approximately $1.4 million in damages and not necessarily an “admission” of the other defendants’
apportioned 40% of the liability to Owens-Corning. liability, see, e.g., Whatley, 861 F.2d at 839, the complaints
admit the existence of potential claims against the named
defendants that may be relevant to causation. We agree with
24 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 5
Fiberglas Corp. Fiberglas Corp.
products. The jury was entitled to believe this evidence, and The Beckmann and Rogers plaintiffs filed motions for a
accepting it would not be unreasonable. new trial on the apportionment issue, arguing that the verdicts
were against the great weight of the evidence; that the court’s
Second, on our review of the evidence of record, as instructions improperly provided for allocation of fault to
described in part III.A. above, we find that the jury’s verdicts parties against whom no evidence of fault was presented; and
as they related to Owens-Corning were not unreasonable. that the court erred in admitting the plaintiffs’ complaints into
Indeed, had the jury found Owens-Corning 0% liable in both evidence. The district court denied the motions, finding that
cases, we would not be free to disturb such a finding on this the jury instructions were correct and that the apportionment
record. was “within the realm of reason.”
Finally, we note that the plaintiffs have failed to identify II.
any portion of the record indicating that they timely objected
to the jury instructions pursuant to Fed. R. Civ. P. 51. Thus, During the relevant time period, Owens-Corning
any error would have to be sufficiently egregious to satisfy the manufactured and distributed an asbestos-based insulation
plain-error rule. Adam, 130 F.3d at 226, and we find none in product known as Kaylo that was either installed or removed
either case. in areas in which each plaintiff worked. In challenging the
jury’s verdicts, the plaintiffs argue that the evidence revealed
Reading the trial court’s instructions as a whole, we that the decedents were exposed to or worked with Kaylo to
conclude that they adequately informed the jury of the a far greater extent than is reflected by the jury’s verdicts.
relevant considerations and provided a basis for its decisions. Thus, we must burden our opinion with a summary of the
Although the district court erroneously included parties in the facts in evidence relating to each decedent’s exposure to
instructions against whom the evidence was lacking, the asbestos, generally, and Owens-Corning’s product, Kaylo,
instructions, when viewed as a whole, were not confusing, specifically.
misleading, or prejudicial in terms of the jury’s ultimate task
of assessing Owens-Corning’s liability. Thus, we conclude A. Beckmann Exposure Evidence
that any error in the manner in which the court instructed the
jury was harmless. Two witnesses, Lowell Collard and Ronald Spainhour,
testified as to the presence of Kaylo at Anaconda Aluminum.
C. Collard testified that he was installing Kaylo at Anaconda
Aluminum in the mid-1960s, and that it was very dusty.
Finally, we turn to the issue whether the district court erred Collard did not know Beckmann and did not know whether
in allowing Owens-Corning to read portions of the plaintiffs’ Beckmann was in the part of the plant where asbestos
complaints into evidence. This court generally reviews a products were used. Spainhour worked directly with
defendant’s challenge to the district court’s decision to admit Beckmann and testified that he could not identify any Owens-
evidence for abuse of discretion. See, e.g., United States v. Corning asbestos-containing products that were in use during
Sanders, 95 F.3d 449, 453 (6th Cir. 1996). The parties have Beckmann’s tenure in the 1960s. He did describe some
not directly presented the issue as a hearsay problem that, insulation that he and Beckmann used in rebuilding industrial
which, since it would involve application of Fed. R. Evid. furnaces, but none of the asbestos products he identified was
801, would call for a de novo review. See United States v.
Jinadu, 98 F.3d 239, 244 (6th Cir. 1996).
6 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 23
Fiberglas Corp. Fiberglas Corp.
an Owens-Corning product. He did not see Kaylo at circumstantial nature of the evidence against Owens-Corning,
Anaconda Aluminum. the jury could reasonably have inferred that the exposure to
Owens-Corning products was sufficiently slight to warrant
Several witnesses testified regarding Beckmann’s time at only a nominal apportionment of liability.
Brown & Williamson. David Parker testified that he saw
insulation workers taking asbestos-based insulation out of In Rogers, the decedent answered interrogatories and gave
Owens-Corning boxes and that Owens-Corning was the only a deposition before his death from mesothelioma. In his
name he ever saw on any of the boxes. Although Parker came answers to Owens-Corning’s interrogatories, Rogers stated
to know Beckmann later, he never knew him or saw him at that “[d]uring the course of [his] career, he was exposed to
Brown & Williamson, and he had no knowledge regarding asbestos containing products manufactured by the
Beckmann’s exposure or lack thereof to asbestos, although he defendants.” In his responses to Owens-Corning’s requests
assumed Beckmann was exposed because of the nature of the for admissions, Rogers specifically admitted exposure to
work he did. Although Parker testified that he saw the name asbestos-containing products manufactured by A.P. Greene,
Owens-Corning on insulation boxes, he also testified that he Garlock, Johns-Manville, W.R. Grace, Owens-Illinois, and
never saw Kaylo at Brown & Williamson. He also testified Pittsburgh Corning, all of whom were settling defendants
that the plaintiffs’ counsel suggested the name Kaylo and appearing on the verdict form. Rogers also admitted exposure
Owens-Corning to him, but did not mention other to asbestos-containing products manufactured by nonsettling
manufacturers. nonparty Celotex, who was incorrectly included in the verdict
form. Rogers also specifically admitted as to each of these
Charles Fleischer testified that Kaylo was in use at Brown defendants that “such exposure was a substantial factor in
& Williamson and that it was very dusty. Fleischer also causing his alleged asbestos-related injury.” These responses
identified other asbestos products in use at Brown & were introduced at trial and read to the jury. Moreover,
Williamson that were manufactured by other defendants. Rogers testified unequivocally that he worked on a daily basis
However, the plaintiffs admit that Fleischer worked at Brown with raw asbestos, which the evidence indicated Owens-
& Williamson from 1959-1964 and 1968-1971, whereas Corning never manufactured. He identified Owens-Illinois as
Beckmann did not begin working there until 1973. the manufacturer that he recalled, while also referring to a
company called “Earthal” that is not involved in the case.
Collard testified that he installed asbestos at Brown & Rogers identified Celotex products and a product he referred
Williamson from 1956-1962, and that the materials were to as “Gold Bond,” but never mentioned Kaylo or Owens-
usually ordered from Owens-Corning. However, he also Corning in his testimony. The jury saw Rogers’s video
identified other manufacturers whose products were used at deposition at trial. Finally, the plaintiffs’ main witness in
Brown & Williamson—manufacturers who were also Rogers, William Clark, was unable to differentiate between
defendants. The plaintiffs’ brief incorrectly states that Owens-Illinois and Owens-Corning in his testimony about
Collard worked at Brown & Williamson in the 1970s when Rogers’s alleged exposure.
Beckmann was there; he did not.
In both cases, the defendant presented evidence that
Robert Kinsella testified that his company installed Kaylo Owens-Corning had warning labels on its Kaylo product as
at job sites listed in an exhibit he was handed at his video early as 1966, and that dust counts performed on Kaylo
deposition. He said the list was “pretty much” accurate. The showed it to be safe in comparison to its competitors’
22 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 7
Fiberglas Corp. Fiberglas Corp.
injury and death. If you so find, you will determine the list included Brown & Williamson, but Kinsella did not
percentage of total fault attributable to the exposure to provide any specific dates or times when Kaylo may have
the other product or products. been in use.
You will determine from the evidence what percentage Charles DuPont testified that he worked with Beckmann at
of total fault for the decedent’s injury was attributable to: Brown & Williamson and that they usually worked the second
or third shift, whereas the insulators worked the first shift and
1. The decedent’s failure to use ordinary care for his cleaned up after themselves before going off duty. DuPont
own safety; testified that he and Beckmann occasionally removed small
2. Defendant’s asbestos-containing products; and portions of insulation, but he could not identify the name or
3. Asbestos-containing products manufactured or manufacturer.
distributed by other companies.
B. Rogers Exposure Evidence
In determining the percentage of fault, you shall
consider both the nature of the conduct of each party at Rogers testified in a video deposition before his death. He
fault and the extent of the causal relationship between the testified that he was “pretty sure” he had been exposed to
conduct and the damage claimed. asbestos pads made by Celotex or Owens-Illinois Glass Co.
Rogers clearly testified that he was exposed to “raw asbestos”
(Emphasis added.) We presume the jury followed the routinely while using it as a filtrate. Rogers identified the
instructions as they were given and “determine[d] from the manufacturer as Owens-Illinois or Earthal. Another witness,
evidence” whether the decedents were exposed to other Jerry Helser, testified that Owens-Corning never
companies’ products, the extent to which such exposure manufactured or distributed raw asbestos. Rogers also
caused the decedents’ injuries, and the extent of the total fault testified that other employees used “Gold Bond” insulation
attributable to companies other than Owens-Corning. and an unidentified “mud” product that may have contained
asbestos. Rogers stated that the “Gold Bond” was in a four-
In Beckmann, witness Collard identified asbestos products foot by eight-foot sheet. However, according to Kinsella,
in use at Brown & Williamson that were manufactured by Kaylo came in a two-inch by 12-inch by 36-inch block.
Johns-Manville, Pittsburgh Corning, and Philip Carey Rogers did not testify that he was exposed to Kaylo or
Manufacturing Co. Owens-Corning presented expert otherwise attribute exposure to Owens-Corning in his video
testimony that indicated that the Pittsburgh Corning and deposition.
Philip Carey products could not be used safely, while Kaylo
could be used safely. Moreover, in response to discovery William Clark worked at Barton Brands from 1958 through
requests, Beckmann admitted at least possible exposure to the time of trial, and he worked directly with Rogers. He
products manufactured by Johns-Manville, Owens-Illinois, testified that raw asbestos was routinely used at Barton
Pittsburgh Corning, and W.R. Grace. Finally, none of the Brands. He saw Rogers working with asbestos insulation, and
evidence submitted in Beckmann supported a direct link he identified Owens-Corning and Owens-Illinois as the
between Beckmann’s presence at Anaconda or Brown & manufacturers. He recalled that sheet insulation was ground
Williamson and the presence of Kaylo in the same area as up for use in filtration when it was not used up in insulation
Beckmann worked. Because of the indirect and activity and that Rogers was extensively exposed because he
8 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 21
Fiberglas Corp. Fiberglas Corp.
used the filtration asbestos almost every day. However, on that a reasonable juror could conclude that apportionment of
cross-examination, Clark was unable to differentiate between some liability to that defendant is justified, thereby satisfying
Owens-Corning and Owens-Illinois. He also testified that the the requirement that “the evidence is sufficient to submit the
sheet insulation was used at Barton Brands only until the early issue of liability,” and ensuring consistency with the
1960s. underlying premise of the comparative fault system to provide
“‘liability for any particular injury in direct proportion to
In his video deposition, Rogers was unable to state how fault.’” Floyd, 758 S.W.2d at 432 (citation omitted).
often extra insulation was ground up for filtration, and he
could specifically identify only one product as Owens- None of this is simple, but our ultimate resolution of this
Corning—a small filter pad that emitted no dust when it was issue is further complicated by the fact that the district court,
installed and was removed wet, that is, dustless. This was the apparently in response to the plaintiffs’ objections to the
only product Rogers associated with Owens-Corning defendants’ proposed instructions, grouped the corporations
specifically, and it was the only Owens-Corning product on other than Owens-Corning together in a category designated
the job site. “others which may include.” In its verdict forms, the jury
allocated 0% of fault to the decedents and 5% and 2% to
III. Owens-Corning in Beckmann and Rogers, respectively, but
made no numerical allocation whatever to any specific
A. composition the court had listed under the category of
“others.” Instead, the jury simply allocated 95% and 98%,
The plaintiffs argue that the district court erred in denying respectively, of fault, in gross, to the entire category of
their motions for a new trial on the basis that the jury’s “others.” Under these circumstances, it is impossible for this
apportionment of liability was against the great weight of the court to determine whether the jury actually apportioned
evidence. The district court ruled, without providing findings liability to any particular defendant in the “others” category,
of fact or conclusions of law, that “the jury’s apportionment and the question becomes whether the evidence was sufficient
of liability was within the realm of reason.” for the jury to allocate the relevant share of liability to any one
or more of them. This is a concern, but we decline to
1. overturn the jury’s verdicts for three reasons.
This court reviews a district court’s decision to deny a First, there was some evidence in the record in each of the
motion for a new trial for an abuse of discretion. See Logan cases from which the jury could reasonably have determined
v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989). that parties other than Owens-Corning, including those plainly
We will reverse such a decision only if we have “a definite erroneously included in the verdict forms, were primarily at
and firm conviction that the trial court committed a clear error fault. In both cases, the proofs focused on exposure. The
of judgment.” Id. district court instructed the jury as follows in each case:
A court may set aside a verdict and grant a new trial when You will determine from the evidence whether the
it “‘is of the opinion that the verdict is against the clear decedent was exposed to one or more similar products
weight of the evidence,’” Duncan v. Duncan, 377 F.2d 49, 52 manufactured or distributed by a company other than the
(6th Cir. 1967) (citation omitted); however, new trials are not defendant which was a substantial factor in causing his
to be granted on the grounds that the verdict was against the
20 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 9
Fiberglas Corp. Fiberglas Corp.
to the defendants, it would doubtless have been error to weight of the evidence “unless that verdict was
include them in the apportionment instructions. unreasonable,” Holmes v. City of Massillon, 78 F.3d 1041,
1047 (6th Cir. 1996). Thus, if a reasonable juror could reach
Id. at 228 n.6 (emphasis added). A district court would err if the challenged verdict, a new trial is improper. See id. at
it instructed a jury to apportion liability to a third-party 1048. “‘[C]ourts are not free to reweigh the evidence and set
defendant where there had been a previous determination that aside the jury verdict merely because the jury could have
dismissal was appropriate because the evidence was drawn different inferences or conclusions or because judges
insufficient to support a finding of liability. feel that other results are more reasonable.’” Duncan, 377
F.2d at 52 (citation omitted). Kentucky courts follow a
We recognize that no Kentucky case has directly addressed substantially similar policy of reluctance to overturn the jury’s
the question whether fault may be apportioned to a settling or verdict. See, e.g., Spears v. Burchett, 289 S.W.2d 731, 735
dismissed party where the evidence is insufficient to support (Ky. Ct. App. 1956).
a finding of liability, absent a previous determination.
However, we are confident, in light of the statute’s 2.
requirement that the jury consider both conduct and causation
in determining fault, the Floyd and Kevin Tucker & We think it is clear that a reasonable juror could have
Associates courts’ references to the sufficiency of the apportioned liability as these jurors did. Kentucky courts
evidence, and this court’s discussion of dismissed third-party adjudicate products liability cases according to principles of
defendants in Adam, that Kentucky courts would conclude strict liability. See, e.g., Nichols v. Union Underwear Co.,
that apportionment of fault to defendants where the evidence 602 S.W.2d 429, 433 (Ky. 1980). Thus, a defendant’s “fault”
is insufficient to support liability is error. Accord Whatley v. is determined according to the unsafe or unreasonable
Armstrong World Indus., Inc., 861 F.2d 837, 839 (5th Cir. condition of the product. See id. The dispositive issue
1988). We conclude that the Kentucky cases assume the presented to the jury was whether exposure to Owens-
point, and that the statute clearly requires sufficient evidence Corning’s asbestos products caused the decedents’
to support a finding of fault as a prerequisite to apportionment mesothelioma, and the jury apparently found the evidence in
under subsection 2. these cases too weak to support an inference of more than
minimal exposure to any Owens-Corning product.
Section 411.182 applies in “tort actions . . . involving fault Significantly, in Becht, which was also consolidated with
of more than one party.” The jury must apportion fault these cases for trial but appealed and decided separately, the
considering evidence of conduct and causation. If the jury apportioned 40% liability to Owens-Corning, indicating
evidence is such that no reasonable juror could determine a its ability to evaluate the evidence in each case independently
given party is at fault, logic dictates that the jury should not be for the purpose of assessing the level of exposure to Owens-
instructed to apportion fault to that party. Under section Corning’s products.
411.182 a district court errs to the extent that it instructs a jury
to apportion liability to parties where the evidence adduced at Several witnesses testified in Beckmann, and their evidence
trial is insufficient as a matter of law to support a finding of was equivocal as to whether Beckmann was exposed to Kaylo
liability against those parties. In order to successfully obtain or any Owens-Corning asbestos product. The evidence was
an apportionment instruction as to a person covered by highly circumstantial, inviting the jury to infer a link between
section 411.182, the party seeking the instruction must show the presence of Kaylo at Beckmann’s places of employment
10 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 19
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without direct testimony of exposure. The causal connection if there is never an “active assertion of a claim” against
between Beckmann’s mesothelioma and exposure to Owens- the third-party, liability cannot be apportioned to him. . . .
Corning products, if it was established at all, was highly Of course, if the third-party plaintiff's claim is dismissed,
speculative. In Rogers, although the jury awarded minimal the plaintiff may ordinarily amend his complaint to make
damages against Owens-Corning, apparently based upon the the ex-third-party defendant a defendant.
decedent’s extensive exposure to raw asbestos or ground up
sheet insulation and the notable absence of other evidence 842 S.W.2d at 874 n.5 (citation omitted). We found it
linking exposure to Owens-Corning’s products, the evidence implicit in this footnote that “if there has ever been an active
was such that a finding of little or no liability on Owens- assertion of a claim against the third party—if the third party
Corning’s part would have been entirely reasonable. has been impleaded by the original defendant, in other
words—liability can be apportioned to the third-party
The plaintiffs’ contention that there was no evidence that defendant notwithstanding a dismissal prior to trial.” Adam,
the other manufacturers’ products were at fault is inaccurate. 130 F.3d at 228. In support, we referenced the following
In Beckmann, Johns-Manville, a third-party defendant, and language as explicitly making the point:
Eagle Picher, an original defendant named in the Beckmann
complaint, were among the manufacturers identified in the “[I]f the evidence at trial shows that [the general
testimony. Moreover, in discovery, Beckmann admitted at contractor] caused some portion of the City’s damages,
least possible exposure to products manufactured by Johns- Tucker will be entitled to an apportionment instruction.
Manville, Owens-Illinois, W.R. Grace & Co., and Pittsburgh [The general contractor] is entitled to be dismissed,
Corning Corporation. In Rogers, witnesses identified Owens- however, because they cannot be liable to Tucker under
Illinois as the main manufacturer of products at Brown & any circumstances.”
Williamson, and Rogers admitted extensive exposure to a raw
asbestos product that Owens-Corning did not manufacture. Id. at 229 (quoting Kevin Tucker & Assocs., 842 S.W.2d at
Rogers never mentioned Owens-Corning or Kaylo in his 875) (some emphasis added). Thus, we concluded in Adam
testimony, and the jury could have reasonably concluded that that the district court’s dismissal of two third-party
the sheet insulation identified as the product ground for defendants, Med-Tech and Musick, before trial, “on grounds
filtration was something other than Kaylo, which came in independent of their liability to the plaintiffs [did not]
block form. Additionally, in discovery, Rogers admitted preclude[] any apportionment of fault to them.” Id. at 227
exposure to products manufactured by Johns-Manville, (emphasis added).
Garlock, Celotex, W.R. Grace, A.P. Greene Refractories Co.,
Owens-Illinois, and Pittsburgh Corning. The converse of the above statement would also apply: If
a third-party defendant were dismissed before trial on the
In Strickland v. Owens-Corning Fiberglas Corp., 142 F.3d ground that it could not be held legally liable to the plaintiffs
353, 356 (6th Cir. 1998), the jury allocated 70% of the fault for their injuries, apportionment of fault to that third-party
to Owens-Corning. We vacated the jury’s allocation of fault defendant would be inappropriate. Indeed, in Adam we
and remanded the case with instructions that Owens- observed:
Corning’s liability be capped at 50% because there was no
“basis for distinguishing [Owens-Corning’s] conduct as more If Med-Tech and Musick had been properly dismissed
blameworthy” than Owens-Illinois’s conduct where Owens- on the ground that there was no evidence to support a
finding that they were liable to the plaintiffs, as opposed
18 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 11
Fiberglas Corp. Fiberglas Corp.
In determining the percentages of fault, the trier of fact Corning was distributing a product manufactured by Owens-
shall consider both the nature of the conduct of each Illinois. Id. Strickland adds little to our analysis here, where
party at fault and the extent of the causal relation there was some basis in the evidence for the jury’s
between the conduct and the damages claimed. conclusion. Ironically, the plaintiffs in this case argue that the
jury’s verdicts were unreasonable, while the plaintiff in Becht,
(Emphasis added.) This language presumes that, before represented by the same counsel, argues that the same jury
apportioning liability to any party, the jury will find that party reasonably concluded that Owens-Corning was 40% at fault.
“at fault” in terms of both aspects of the fault attributed to it. We agree with Owens-Corning that the evidence of exposure
In this case, the two aspects are (1) the party’s manufacture to Kaylo in Becht was “less circumstantial” than the evidence
and/or distribution of an unsafe product, and (2) causation, in Beckmann and Rogers, and we believe that the jury’s
that is, at a minimum, exposure to the unsafe product. allocation of significantly more fault to Owens-Corning on
Consistent with this understanding of the rule, in Floyd, the stronger evidence in Becht demonstrates that it acted
court explained: rationally in evaluating the evidence in each case. Thus, we
conclude that the district court did not abuse its discretion by
If there is an active assertion of a claim against joint refusing to grant a new trial on the basis that the jury’s
tortfeasors, and the evidence is sufficient to submit the verdicts in Beckmann and Rogers were within the realm of
issue of liability to [sic] each, an apportionment reason.
instruction is required whether or not each of the
tortfeasors is a party-defendant at the time of trial. B.
758 S.W.2d at 432 (emphasis added). The plaintiffs also argue that the district court’s jury
instructions on the allocation of fault erroneously included
In Kevin Tucker & Associates, the Kentucky Court of parties about whom little or no evidence of fault was
Appeals affirmed the trial court’s judgment dismissing a submitted, and some of whom were never named as
third-party defendant impleaded on a contribution theory defendants in the complaints.
because the apportionment statute, by establishing a standard
whereby “each tortfeasor’s liability is limited by the extent of 1.
his fault,” 842 S.W.2d at 874, precluded a finding that the
third-party defendant could be liable to the defendant “for all Federal jurisdiction in this case is based on diversity of
or part of the plaintiff’s claim,” Ky. Civ. R. 14. We looked to citizenship. See 28 U.S.C. § 1332. In a diversity case,
that decision in Adam to determine that the dismissal of third- “federal law governs our standard of review for determining
party defendants does not “preclude their being included in whether a jury instruction is prejudicial.” Gafford v. General
the jury instructions on apportionment,” 130 F.3d at 228, Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (internal
relying on the following language in a footnote in Kevin quotation marks and citations omitted). Our duty is to
Tucker & Associates: “review jury instructions as a whole to determine whether
they adequately inform the jury of the relevant considerations
[T]hird-party defendants may often be entitled to and provide a basis in law for aiding the jury in reaching its
dismissal on the grounds that they cannot be liable to the decision.” Jones v. Consolidated Rail Corp., 800 F.2d 590,
third-party plaintiff. . . . This does not mean that 592 (6th Cir. 1986). We will reverse a jury’s verdict on the
defendants should not assert these third-party claims; for
12 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 17
Fiberglas Corp. Fiberglas Corp.
basis of improper instructions only when the instructions, [T]he comparative negligence statute and Hilen both
when viewed as a whole, are confusing, misleading, and preclude the adjudication of liability of persons or legal
prejudicial. Federal courts generally presume the jury will entities who are neither before the court nor are settling
follow the instructions correctly as given. We will not reverse tort-feasors. . . . KRS 411.182 merely addresses the
a decision on the basis of an erroneous jury instruction where procedure for apportioning liability among parties before
the error is harmless. See United States v. Toney, 161 F.3d the court or who have settled or been released. It does
404, 412-13 (6th Cir. 1998), cert. denied, 119 S. Ct. 1347 not direct or authorize the adjudication of fault of absent,
(1999). potential litigators.
2. Copass v. Monroe County Med. Found., Inc., 900 S.W.2d
617, 619 (Ky. Ct. App. 1995).
Ky. Rev. Stat. Ann. § 411.182 governs apportionment of
fault among multiple tortfeasors in Kentucky: The Kentucky case law interpreting and applying section
411.182 uniformly rejects the inclusion of nonsettling
(1) In all tort actions, including products liability nonparties in the jury’s apportionment instructions.
actions, involving fault of more than one party to the Consequently, the district court erred when it included
action, including third-party defendants and persons who Garlock and Keene in the “others” category in the Beckmann
have been released under subsection (4) of this section, case, because they were never parties and did not buy their
the court, unless otherwise agreed by all parties, shall peace from the Beckmann estate. Likewise, the district court
instruct the jury to answer interrogatories or, if there is no erred when it included Celotex and Eagle-Picher in the
jury, shall make findings indicating: “others” category in the Rogers case, because they too were
never parties and did not buy their peace from Rogers or his
(a) The amount of damages each claimant would be estate. However, for reasons explained below, we will not
entitled to recover if contributory fault is disregarded; reverse the jury’s verdicts on the basis of these errors alone.
and
In its instructions to the jury, the district court included
(b) The percentage of the total fault of all the parties several other corporations in the “others” category, each of
to each claim that is allocated to each claimant, whom were named parties who had been dismissed or had
defendant, third-party defendant, and person who has otherwise settled their claims with the plaintiffs. The
been released from liability under subsection (4) of this plaintiffs contend that doing so was error because no evidence
section. was introduced of these manufacturers’ fault and there was
not sufficient evidence to establish that exposure to their
(2) In determining the percentages of fault, the trier of products caused the decedents’ mesothelioma. There is little
fact shall consider both the nature of the conduct of each direct Kentucky authority on the question whether, assuming
party at fault and the extent of the causal relation a lack of evidence to support a finding of liability against a
between the conduct and the damages claimed. particular party, it is error to permit a fact finder to consider
apportionment of fault against such party, even when there
(3) The court shall determine the award of damages to clearly had been an active assertion of a claim against him.
each claimant in accordance with the findings, subject to However, Ky. Rev. Stat. Ann. § 411.182(2) states:
any reduction under subsection (4) of this section, and
16 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 13
Fiberglas Corp. Fiberglas Corp.
adopt a theory of implied agreement between Betty and shall determine and state in the judgment each party’s
Ralph by Betty’s failure to sue Ralph. While we will equitable share of the obligation to each claimant in
liberally construe the statute, we believe Williams’ accordance with the respective percentages of fault.
construction is beyond the bounds of liberality.
(4) A release, covenant not to sue, or similar
Id. (emphasis added). Thus, under Floyd, Dix, and Bass, agreement entered into by a claimant and a person liable,
section 411.182 apportionment encompasses named parties, shall discharge that person from all liability for
including third-party defendants and parties dismissed for contribution, but it shall not be considered to discharge
whatever reason, and settling parties or settling nonparties. It any other persons liable upon the same claim unless it so
does not include nonsettling nonparties. See Kevin Tucker & provides. However, the claim of the releasing person
Assocs., Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874 (Ky. against other persons shall be reduced by the amount of
Ct. App. 1992); see also Adam v. J.B. Hunt Transp., Inc., 130 the released persons’ equitable share of the obligation,
F.3d 219, 227-28 (6th Cir. 1997). determined in accordance with the provisions of this
section.
The Kentucky Court of Appeals adopted this reading of the
statute two years later in Baker v. Webb, 883 S.W.2d 898 (Ky. With the exception of Garlock, Inc. and Keene Building
Ct. App. 1994). There, in connection with an automobile Products Corporation in Beckmann, and Celotex Corporation
collision causing injury to the plaintiff, the trial court and Eagle-Picher Industries, Inc. in Rogers, each of the
instructed the jury as to the legal duties of the defendant, the corporations named in the jury instructions in both cases was
plaintiff, and the plaintiff’s husband, who was not a party but a party to the action, a dismissed defendant, or a settling
was driving one of the vehicles when the plaintiff was injured, tortfeasor. In both cases, the plaintiffs argue that all of the
and included the plaintiff’s husband in the apportionment defendants included in the “others” category were improper
instruction. The court of appeals reversed the jury’s because Owens-Corning produced no evidence that these
apportionment of 40% liability to the plaintiff’s husband, parties were at fault or that exposure to their products caused
concluding that section 411.182 does not apply to nonsettling the decedents’ mesothelioma and that the evidence of record
nonparties: was insufficient to support a finding of liability against any of
them.
[T]he thrust of KRS 411.182, considered in its entirety,
limits allocation of fault to those who actively assert Section 411.182 and the relevant Kentucky case law
claims, offensively or defensively, as parties in the decided both before and after the enactment of the statute
litigation or who have settled by release or agreement. indicate that the court is required to instruct the jury to
When the statute states that the trier-of-fact shall apportion liability to the parties to the case, including
consider the conduct of “each party at fault,” such phrase plaintiffs, defendants, and third-party defendants, and to
means those parties complying with the statute as named parties who have settled or otherwise “bought their peace” by
parties to the litigation and those who have settled prior an agreement described in subsection 4. We begin our
to litigation, not the world at large. analysis of section 411.182 with a brief discussion of those
cases decided before the statute was enacted in order to place
Id. at 900. Likewise, a year later, the court of appeals stated: the statute in its proper historical context.
14 Barnes, et al. v. Owens-Corning Nos. 98-5371/5376 Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning 15
Fiberglas Corp. Fiberglas Corp.
In Orr v. Coleman, 455 S.W.2d 59, 61 (Ky. Ct. App. 1970), has settled the claim against him or if he was named as a
the Kentucky Court of Appeals held that Ky. Rev. Stat. defendant in the plaintiff’s complaint even though the
§ 454.040, which granted juries the discretion either to complaint was subsequently dismissed as to him.
apportion fault among joint tortfeasors or to impose joint
damages, allowed apportionment of fault to any named Id. at 432. And so, apportionment of fault to “a joint
defendant who settled before trial. The Kentucky Supreme tortfeasor with whom the plaintiff ha[d] settled but who was
Court subsequently extended Orr in Daulton v. Reed, 538 not named as a party defendant by the plaintiff and whom the
S.W.2d 306, 308 (Ky. 1976), and required apportionment of defendant did not name as a third-party defendant,” id. at 430,
fault to defendants against whom claims had been dismissed was appropriate. The Floyd court noted that the case arose
“whatever may have been the reason,” so long as there was an after Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), in which the
“active assertion of a claim.” Id. Thus, under Orr and court abandoned contributory negligence and adopted
Daulton, the jury’s task of apportioning liability extended to comparative negligence in the name of “simple fairness
settling named defendants and dismissed defendants. [which] required[] ‘liability for any particular injury in direct
Consistent with Daulton, the Supreme Court of Kentucky, in proportion to fault.’” Floyd, 758 S.W.2d at 432 (citation
Prudential Life Insurance Co. v. Moody, 696 S.W.2d 503, omitted). Floyd, although it did not apply section 411.182, is
504 (Ky. 1985), held that apportionment of 50% of the fault the only Kentucky apportionment case discussed in the
to a party ultimately adjudicated immune under the statute of parties’ briefs on appeal.
limitations was appropriate.
After the enactment of section 411.182, the Kentucky
In Floyd v. Carlisle Construction Co., 758 S.W.2d 430 (Ky. Supreme Court, in Dix & Associates Pipeline Contractors,
1988), which was decided contemporaneously with the Inc. v. Key, 799 S.W.2d 24, 29 (Ky. 1990), acknowledged that
Kentucky Legislature’s enactment of section 411.182, the the statute expressly requires apportionment of third-party
Kentucky Supreme Court reviewed the case law and held that defendants’ liability. However, the Kentucky Court of
a nonparty tortfeasor who settled his claims with the plaintiff, Appeals later declined to construe section 411.182 to include
or was dismissed, was to be treated as a party for nonparties, as it might have done, considering the Floyd
apportionment purposes, although apportionment would not court’s reference to requiring an apportionment instruction
impose any liability on nonparties. The Floyd court explained “whether or not each of the tortfeasors is a party-defendant at
the significance of its earlier cases on apportionment: the time of trial.” Floyd, 758 S.W.2d at 432. In Bass v.
Williams, 839 S.W.2d 559 (Ky. Ct. App. 1992), the court of
The basis for these holdings is the active assertion of appeals concluded that “the trial court erred when it instructed
a claim against joint tortfeasors. If there is an active the jury to consider the duties of [nonparty] Ralph Bass in
assertion of a claim against joint tortfeasors, and the [apportioning liability].” Id. at 564.
evidence is sufficient to submit the issue of liability to
[sic] each, an apportionment instruction is required KRS 411.182 applies to persons named as parties,
whether or not each of the tortfeasors is a party-defendant regardless of how named and those persons who bought
at the time of trial. their peace from the litigation by way of releases or
agreements. These persons affected by the statute are
A tortfeasor who is not actually a defendant is explicitly denominated, and Ralph Bass does not fit into
construed to be one for purposes of apportionment if he any of the described classifications. Williams urges us to