Kirk v. Raymark Industries, Inc.

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit
7-27-1995
Kirk v Raymark Industries
Precedential or Non-Precedential:
Docket 94-1745
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UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 94-1745 and 94-1746
SARAH A. KIRK, Administratrix of
the Estates of KIRK, Alfred T., Deceased
and KIRK, Sarah A. in her own right
v.
RAYMARK INDUSTRIES, INC.; EAGLE-PICHER INDUSTRIES, INC.;
KEENE CORPORATION; GARLOCK INC; OWENS-CORNING FIBERGLAS
CORPORATION; CELOTEX CORP.; GAF CORPORATION;
OWENS-ILLINOIS GLASS COMPANY
Owens-Corning Fiberglas
Corporation,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 88-cv-03736)
Argued February 14, 1995
Opinion Filed April 14, 1995
Panel Rehearing Granted May 22, 1995
Resubmitted on Supplemental Briefing June 12, 1995
BEFORE: STAPLETON, GREENBERG and COWEN,
Circuit Judges
(Filed: July 27, 1995)
Joseph M. Greitzer
Jerry Kristal (Argued)
Greitzer & Locks
1500 Walnut Street
20th Floor
Philadelphia, PA 19102
Counsel for Appellee
Sarah A. Kirk, Administratrix of the
Estates of KIRK, Alfred T., Deceased
1
and KIRK, Sarah A. in her own right
Robert N. Spinelli
W. Matthew Reber (Argued)
Kelley, Jasons, McGuire & Spinelli
1234 Market Street
Suite 1300
Philadelphia, PA 19107
Counsel for Appellant
Owens-Corning Fiberglas Corporation
OPINION
COWEN, Circuit Judge.
This asbestos-related personal injury action was tried
to a jury in the United States District Court for the Eastern
District of Pennsylvania. The jury returned a verdict in favor
of the plaintiff in excess of two million dollars. On
application by counsel, the district court granted plaintiff
delay damages in the amount of $520,684. In these consolidated
appeals, we are called on to determine whether: (1) the district
court abused its discretion by denying the defendant's challenge
for cause of two jurors who allegedly evidenced bias against the
defense; (2) the defendant has waived any claim that there was a
violation of its statutory right to exercise peremptory
challenges; (3) a denial or impairment of the exercise of
peremptory challenges occurs if the defendant uses one or more
challenges to remove jurors who should have been removed for
cause; and (4) a per se reversal is the appropriate remedy for
2
such impairment or whether the defendant must also make a showing
of prejudice. Additionally, we are called upon to determine
whether the district court committed an error of law by: (1)
allowing plaintiff to introduce into evidence the prior testimony
of an out of court expert witness from an unrelated state court
action; (2) permitting plaintiff to introduce the interrogatory
responses of a co-defendant who settled with the plaintiff prior
to trial; (3) awarding plaintiff delay damages pursuant to Rule
238 of the Pennsylvania Rules of Civil Procedure.
Because we conclude the district court abused its
discretion in denying the defendant's challenge for cause of two
jurors during voir dire, and because we conclude that this
effected a denial or impairment of the defendant's statutory
right to peremptory challenges requiring per se reversal, we will
reverse the judgment of the district court and remand for a new
trial on the issue of damages and liability.0 Since it is likely
that the hearsay issues and the issue of delay damages may arise
again during the new trial, we deem it appropriate to offer the
district court guidance. On these subjects, we conclude that the
district court erred as a matter of law in allowing the
introduction of hearsay evidence, but did not err in ruling that
0
Defendant also argues that the district court abused its
discretion in denying: (1) defendant a fair opportunity to prove
the liability of a settled co-defendant by denying defendant's
request for a continuance to subpoena product identification
witnesses; and (2) defendant's request for a new trial on the
grounds of excessiveness of the verdict. Because of our decision
to reverse the judgment of the district court and remand for a
new trial on the issue of damages and liability, we need not
address these arguments.
3
delay damages would be permitted when delay was caused by a
judicial stay for which the plaintiff was not responsible.
I. Factual and Procedural History
Alfred Kirk ("decedent"), a retired painter, died on
July 5, 1988 at the age of 65 from malignant asbestos-induced
mesothelioma. Mrs. Sarah Kirk ("Kirk"), suing on behalf of
herself and her deceased husband's estate, filed this diversity
action against eight defendants, including Owens-Corning
Fiberglas Corporation ("Owens-Corning").0 Kirk alleged that her
husband's mesothelioma was caused by exposure to dust from
asbestos products during his employment at the New York Shipyard
in Camden, New Jersey, during the late 1950's and early 1960's.
By order dated July 29, 1991, the Judicial Panel on
Multidistrict Litigation ("MDL") transferred all pending federal
asbestos personal injury actions to the Eastern District of
Pennsylvania. Pursuant to the MDL Panel's Order, all federal
asbestos cases were stayed until the summer of 1993.
During jury selection, Owens-Corning challenged for
cause two prospective jurors maintaining that the prospective
jurors could not be impartial because they revealed considerable
potential bias against Owens-Corning during voir dire. The
0
Of these eight defendants, four were bankrupt at the time of
trial. Of the four remaining defendants, Kirk settled with
Garlock, Inc., GAF Corporation, and Owens-Illinois prior to
trial. Kirk also previously filed an asbestos-related lawsuit in
the Philadelphia Court of Common Pleas against Pittsburgh Corning
Corporation, H.K. Porter Company, Inc., and Southern Textile
Corporation. Of these defendants, two were bankrupt and Kirk
settled with Pittsburgh Corning prior to trial.
4
district court refused to strike these prospective jurors for
cause, and Owens-Corning was then compelled to utilize two of its
three peremptory strikes to remove these prospective jurors.0
On December 13, 1993, the trial (which was reverse-
bifurcated) began with issues of medical causation and damages.
At the conclusion of this phase of the trial, the jury returned a
verdict in favor of the Estate of Alfred Kirk for $1.2 million
and in favor of Sarah Kirk for $810,000. The liability phase of
the trial commenced several days later before the same jury that
had previously heard the damages phase. At the conclusion of the
liability trial, the jury returned a verdict against Owens-
Corning. The jury also found that the decedent was not exposed
to dust emitted by any asbestos-containing product manufactured
by co-defendant Garlock, Inc. ("Garlock").
Following the jury verdict, Owens-Corning moved for a
new trial, alleging several trial errors including: (1) failing
to strike two prospective jurors for cause; and (2) allowing the
introduction of hearsay evidence. This application was denied by
0
We granted panel rehearing for the purpose of determining
whether reversal is required when a party is compelled to expend
or "waste" any number of its peremptory strikes to remove a
prospective juror who should have been removed for cause. In the
original panel opinion, we concluded that Owens-Corning was
prejudiced by the presence of these two jurors sitting on the
jury. We were shocked to learn, in a petition for rehearing in
banc, that these two jurors never actually served because Owens-
Corning exercised peremptory strikes to remove these jurors. In
the original briefing, as well as during argument before this
panel, both parties failed to inform the Court that these two
jurors were never seated on the jury. We are deeply disturbed by
the fact that the briefing in this matter did not make clear to
us this crucial fact and caused the Court to waste valuable time
and judicial resources.
5
the district court. Kirk filed an application for delay damages
pursuant to Rule 238 of the Pennsylvania Rules of Civil
Procedure, which the district court granted in the amount of
$520,684. Owens-Corning appeals from both the judgment and the
award of delay damages.
Owens-Corning argues that the district court made
several errors which require reversal of both the damage and
liability phases of the trial, and that the district court
improperly denied its post-verdict motion for a new trial.
Finally, Owens-Corning claims that delay damages should not have
been awarded to Kirk, because the delay was caused by the
plaintiff filing simultaneous federal and state court actions
and/or caused by the MDL order staying all asbestos cases, and
was not caused by any bad faith on the part of Owens-Corning. We
will address each of these arguments seriatim.
The district court had jurisdiction to hear this case
pursuant to 28 U.S.C. § 1332. Our jurisdiction is premised on 28
U.S.C. § 1291 as the judgment entered was a final order.
II. Juror Challenges
A. Challenges for Cause
Owens-Corning argues that the district court erred in
refusing to strike for cause two prospective jurors (juror #251
and juror #45) who the defendant argues revealed considerable
potential bias against it during voir dire. As a consequence,
Owens-Corning claims that it was forced to expend or "waste" two
of its peremptory strikes to remove these two jurors from the
6
jury. We review for abuse of discretion a district court's
decision regarding a motion to dismiss a juror for cause. United
States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992), cert.
denied, __ U.S. __, 113 S. Ct. 1367 (1993) (citing United States
v. Salamone, 800 F.2d 1216, 1226 (3d Cir. 1986) (the factual
determination by the district court whether a juror can serve
impartially is entitled to special deference when reviewed on
appeal), cert. denied, 498 U.S. 1030, 111 S. Ct. 685 (1991)).
Because the trial judge is in the best position to
assess the credibility and demeanor of the prospective jurors,
"district courts have been awarded ample discretion in
determining how best to conduct the voir dire." Waldorf v.
Shuta, 3 F.3d 705, 710 (3d Cir. 1993) (citing Rosales-Lopez v.
United States, 451 U.S. 182, 189, 101 S. Ct. 1629, 1635 (1991)).
In determining whether a particular juror should be excused for
cause, our main concern is "whether the juror holds a particular
belief or opinion that will ``prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath.'" Salamone, 800 F.2d at 1226 (citing
Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852
(1985)). "A juror is impartial if he or she can lay aside any
previously formed ``impression or opinion as to the merits of the
case' and can ``render a verdict based on the evidence presented
in court.'" Polan, 970 F.2d at 1284 (citing Irvin v. Dowd, 366
U.S. 717, 723, 81 S. Ct. 1639, 1643 (1961)). However, the
district court should not rely simply on the jurors' subjective
assessments of their own impartiality. See Waldorf, 3 F.3d at
7
710 (district court relied too heavily on jurors' assurances of
impartiality); see also Government of the Virgin Islands v.
Dowling, 814 F.2d 134, 139 (3d Cir. 1987) (though a juror swears
that he could set aside any opinion he might hold and decide the
case on the evidence, a juror's protestation of impartiality
should not be credited if other facts of record indicate to the
contrary), aff'd, 493 U.S. 342, 110 S. Ct. 668 (1990).
Owens-Corning argues that prospective juror #251 should
have been struck for cause because he worked with asbestos-
containing products for many years and indicated during voir dire
that he was leaning in favor of the plaintiff. Kirk argues that
this prospective juror was properly placed on the jury because
when questioned by both the district court and counsel whether he
could render a fair and impartial verdict, the prospective juror
responded in the affirmative.
We are troubled by the fact that a district judge,
despite assurances of impartiality, allowed a prospective juror
to serve in a mesothelioma case when the juror's background
raised serious questions as to his ability to serve impartially.0
0
Relevant portions of the voir dire of prospective juror # 251
are as follows:
Juror 251: Well, two uncles had cancer, they were mechanics.
Our union did a study on their members. I am a
mechanic, and it was like 97 percent of them
tested had some problem with asbestos. I have
eaten a lot of it over the years brakes, clutches
up until gets in the air hose, blows it out, you
spit black dirt for two days.
. . . .
Mr. Kristal (counsel for Kirk): Do you think that will affect
your ability to listen to the
8
evidence and be fair to both
sides in this case?
Juror 251: Well I could only try to be fair is all I could
say. I guess in a way I got to be a little one
way, I'm probably high on the priority list
myself. I've been a mechanic since 1957, up until
when they stopped using it, you know, you took a
clutch out of a truck, hit it with the air hose
and the whole shop is black.
. . . .
Mr. Kristal: If I didn't prove my case, or show that Mr. Kirk
didn't have asbestos disease or I was unable to
show Owens-Corning Fiberglas was liable,
would you be able to return a verdict against my
client?
Juror 251: I wouldn't have any problems at all.
Mr. Kristal: [I]f I had proven the case, would you be able to
find in favor of my client?
Juror 251: I might lean the other way because I have been
there. I know a lot of members who have been down
that road, you know.
Mr. Kristal: Can you put [your past experience with asbestos]
behind you and decide this case on what you hear
in the courtroom from the witness stand and follow
the Court's instructions?
Juror 251: I believe I could.
Mr. Hewitt (counsel for Owens-Corning): Your two uncles had
cancer?
Juror 251: Yes.
Mr. Hewitt: Do you believe those cancers were related to
asbestos?
Juror 251: I don't know. They both had lung cancer.
Mr. Hewitt: Were they around asbestos?
Juror 251: Mechanics the same as I am, both smoke, so it's
anybody's guess.
9
App. 68-70.
The Court: He thinks he has asbestos coursing through his
system.
. . . .
The Court: I just want to clarify in my own mind, you have
been exposed to the brake linings and flakes from
brake linings?
Juror 251: Yes.
The Court: For many years now?
Juror 251: Yes, sir.
The Court: And you think that probably asbestos fibers made
their way in through your own system because when
you had the air hose --
Juror 251: You see our Local, I am a member of the Local, and
when all this asbestos problem came out, the Union
started testing some of the older members. It was
like they finally knocked it off like 97 percent
of the people tested, tested positive for
asbestos. And back then, we didn't know nothing
about it. You took brakes off the truck, took the
air hose blew it off, disk, clutch, all asbestos,
and I said yesterday, I probably had eaten a
couple of pounds of it, and I have never been
tested for it, but I have been subject to it.
The Court: If you are on this case you would be deciding
certain questions, concerning somebody who died of
asbestos exposure, how much money to award. Do
you think because of your own personal experience
perhaps to a certain extent because of your
uncles, you are not sure of the cause of the
death, whether cigarettes or something to do with
asbestos, do you think you could be fair or would
you be inclined --
Juror 251: Like I said, most of what I seen has been against
it. I would have to sit and listen to the case.
If the one attorney can prove that it wasn't, I
could handle that. But at this point right now I
only know the one side of it.
The Court: The way it's going to be, the plaintiff has the
burden of proof, not the defendant. And do you
10
Specifically, we note the following facts which raise substantial
questions of the potential bias of juror #251: (1) during the
course of his work history he had "probably eaten a couple of
pounds of [asbestos]"; (2) he was a union shop steward for 35
years and received one-sided literature from the union regarding
asbestos; (3) he believed that 97% of the older workers in his
local union had tested positive for asbestos in their system; (4)
he had two uncles who died of lung cancer and although they were
think you could decide the case fairly or do you
think because of your own personal experiences you
would be sort of caught up in it and tend to favor
the plaintiff?
Juror 251: I think I could do it fairly. I have been a shop
steward for 35 years. Lots of time I have to go
against the company. That didn't sit too well but
I think I could sit and listen to the facts.
. . . .
Juror 251: I think I could weed through it. Most of the
information I have has been from the side of the
Union coming with the asbestos. And really, it's
a one-sided argument.
. . . .
Mr. Hewitt: I think you indicated earlier that you would lean
a little --
Juror 251: Well, at this point I would have to be [a] liar if
I said to you -- the facts that I had lean in
favor of the possibility or the possibility of it
happening. I haven't really had any, a lot of
facts thrown to me, where it is not, and like I
said, I would have to hear what they have to say,
and determine from that. I just can't crystal-
ball, say this gentleman is going to convince me
that the client, his client did die from it. I
just have to listen to the facts, and just
understand all the facts that I had about it have
been the negative, from your standpoint, so I
would have to weed out one or the other.
App. at 76-79.
11
cigarette smokers, they had been exposed to asbestos during the
course of their work lives; (5) he admitted in the first instance
that he was leaning in favor of the plaintiff and against the
asbestos company; (6) he believed that he was "probably high on
the priority list" of getting an asbestos-related disease
himself; and (7) he knew "a lot of [union] members" who
presumably had asbestos-related medical problems.
Owens-Corning next argues that prospective juror #45
should have been struck for cause because he had responded to the
jury questionnaire that he could not be fair and later repeated
at voir dire that he would have a difficult time being fair to
the defendant. Kirk counters by pointing out that when further
questioned by the district court as to whether he could render a
fair and impartial verdict, the prospective juror responded in
the affirmative.0 Again, we are troubled because the second
0
Relevant portions of the voir dire are as follows:
The Court: In this case, sir, if you are on this jury can you
well and truly try the case based on the evidence
as it comes forth from the witness stand and not,
with all respects [sic] to the media, based on TV,
or radio or newspapers and all of that? Do you
think you could do that, sir?
Juror 45: Yes, I believe so, because it's possible it could
be slanted one way or the other.
. . . .
The Court: So you answered that you could not be fair to
companies that made, distributed, supplied and/or
installed asbestos-containing products, what do
you mean by that?
Juror 45: Basically I feel it's sort of immoral to knowingly
produce something you know is going to cause a
problem.
12
prospective juror: (1) stated in the jury questionnaire that he
could not be fair to companies that made, distributed, supplied
and/or installed asbestos-containing products; (2) felt it was
immoral to produce asbestos if the company knew it was going to
cause a problem; and (3) indicated that he could not be fair to
The Court: Do you think it's immoral -- I am not saying this
is the case -- to produce something when they
don't know anything is wrong with it, they don't
know but it turns out later there is something
wrong with it?
Juror 45: I feel if they do find out it should be corrected.
. . . .
The Court: [D]o you think you could be fair?
Juror 45: Yes.
Mr. Hewitt: One question, if the evidence is that Owens
Corning knew that asbestos was hazardous would you
have a tough time giving them a fair shake?
Juror 45: Yes, I would.
The Court: What do you mean by giving them a fair shake?
Would you have a tough time coming up with a
verdict in their favor if you know the [sic] under
the evidence and the law they are liable?
Juror 45: Well --
The Court: I would tell you if it comes in, if the evidence
and the law did not demonstrate that the plaintiff
proved their [sic] case, I am not saying that is
not being fair to the defendant, you are being
fair, just as you would be fair to the plaintiff
if after fairly considering the evidence you find
there's not a case made out, you would
nevertheless find against her, you are abiding by
your oath as a juror.
Juror 45: Whatever you say, yes.
App. at 64-66.
13
the defendant if the evidence indicated that Owens-Corning knew
that asbestos was hazardous. Only after being repeatedly asked
if he could be fair, the juror answered, "Whatever you say, yes."
Recently, we had the opportunity to decide a similar
case involving a challenge to a district court's refusal to
remove several jurors for cause. Polan, 970 F.2d at 1284. In
that case, which involved a prosecution for conspiracy to
distribute and the distribution of illegally prescribed drugs,
counsel for the defendant challenged for cause three prospective
jurors who revealed during voir dire that either they or members
of their families were victims of drug abuse. Id. Juror #1
revealed that one of his brothers had died of a drug overdose and
another brother had served a lengthy prison term for drug
offenses. Id. n.2. Juror #2 indicated that she had become
dependent upon tranquilizers after experiencing a family tragedy.
Id. Juror #3 revealed that his son had abused alcohol and drugs
in the past. Id. However, all three prospective jurors
ultimately assured the court that their past experiences would
not affect their decision making and that they would be fair and
impartial. After reviewing the record of the voir dire, we
concluded that the district court did not abuse its discretion in
refusing to strike those prospective jurors. Polan, 970 F.2d at
1284.
We find that Polan is distinguishable from the case
before us. In Polan, the defendant wanted the prospective jurors
removed presumably because he believed that some of their past
experiences would make them more likely to vote for conviction.
14
With regard to juror #1, we gave little weight to the theory that
an individual whose one brother died of a drug overdose and whose
other brother served a prison sentence for drug offenses would be
more likely to convict a criminal defendant charged with drug
distribution. With regard to juror #2, we were not convinced
that a person who became dependent on sedatives after the shock
of a family tragedy would be more likely to convict an individual
accused of distributing drugs. Finally, with regard to juror #3,
we gave little credence to the notion that a father who endured
his son's alcohol and drug problems would be biased in favor of
the prosecution. Thus, when the district court in Polan credited
the assurances of the three prospective jurors, it implicitly
made two findings: (1) that the jurors were telling the truth and
(2) despite the experiences and personal biases of the jurors,
they could be fair and impartial, precisely because their past
experiences and personal biases did not make them more likely to
convict the defendant.
Here, Owens-Corning objected to jurors #251 and #45
being seated on the jury because it believed that their personal
biases regarding asbestos and asbestos companies would make them
more likely to return a finding of liability and a large damage
award against Owens-Corning. Unlike the defendant in Polan,
Owens-Corning's fear, that the prospective witnesses' past
experiences and personal biases would affect their decision, was
well-founded.
Juror #251 inhaled a considerable amount of asbestos,
knew people who were suffering from asbestos-related diseases,
15
and thought himself likely to succumb to some asbestos-related
disease in the future. Thus, there was good reason to conclude
that he would be more likely to return a large damage award
because he sympathized with the plaintiff. See Gumbs v. Pueblo
International, Inc., 823 F.2d 768, 773 (3d Cir. 1987) ("[A]
jur[or] may not abandon analysis for sympathy for a suffering
plaintiff and treat an injury as though it were a winning lottery
ticket."). It is difficult to conceive of a juror who would be
more partial to this plaintiff than juror #251. Because juror
#251's background is replete with circumstances which would call
into question his ability to be fair to an asbestos manufacturer,
we find that the district judge should have removed this juror
for cause.
Juror #45 stated that he was biased against asbestos
companies and felt it was immoral knowingly to produce harmful
and defective products. The danger existed that this juror would
return a verdict of liability against Owens-Corning even if
Owens-Corning's products were not responsible for the decedent's
injuries. We can think of few admissions more compelling in
asbestos litigation than a prospective juror who acknowledges
that he would have moral qualms about being fair to an asbestos
manufacturer.
We conclude that juror #45 and especially juror #251
could not serve fairly and impartially in light of their past
experiences and personal biases. The district court relied too
heavily on the jurors' assurances of impartiality, and therefore
abused its discretion. A district court's refusal to excuse a
16
juror will not automatically be upheld simply because the
district court ultimately elicits from the prospective juror that
he will be fair and impartial, despite earlier statements or
circumstances to the contrary. The application of Owens-Corning
to dismiss these two jurors for cause should have been granted.
B. Peremptory Challenges
Because the district court refused to strike these
jurors for cause, Owens-Corning exercised two of its three
peremptory strikes to remove these two prospective jurors from
the jury. Federal law provides that "[i]n civil cases, each
party shall be entitled to three peremptory challenges." 28
U.S.C. § 1870. We must now decide whether: (1) the defendant has
waived any claim that there was a violation of a statutory right
to exercise peremptory challenges; (2) a denial or impairment of
the exercise of peremptory challenges occurs if the defendant
uses one or more challenges to strike jurors who should have been
removed for cause; and (3) a per se reversal is the appropriate
remedy for such impairment or whether the defendant must also
make a showing of prejudice.
1. Waiver
Kirk argues that we may not now consider on appeal
Owens-Corning's contentions that there was a violation of the
statutory right to exercise peremptory strikes because the claim
17
was not properly preserved in the trial court.0 We have
previously held that "[i]t is well established that failure to
raise an issue in the District Court constitutes waiver of the
argument." Brenner v. Local 514, United Brotherhood of
Carpenters, 927 F.2d 1283, 1298 (3d Cir. 1991).
Owens-Corning made the following argument before the
district court in support of its motion for a new trial:
[T]he district court is compelled to excuse a
potential juror when bias is discovered
during voir dire, as the failure to do so may
require the litigant to exhaust peremptory
challenges on persons who should have been
excused for cause. This result, of course,
extinguishes the very purpose behind the
right to exercise peremptory challenges. U.S.
v. Daly, 716 F.2d 1499, 1507 (9th Cir. 1983)
[citing United States v. Allsup, 566 F.2d 68,
71 (9th Cir. 1977); United States v. Nell,
526 F.2d 1223, 1229 (5th Cir. 1976)].
Brief of Owens-Corning in Support of its Motion for a New Trial
at 3.0 In Daly, the Court of Appeals for the Ninth Circuit
additionally stated that "[s]uch an infringement, if it causes a
0
Alternatively, Kirk maintains that to the extent this issue was
not waived, the argument must fail on the merits because Owens-
Corning failed to show that the jury was not impartial. We will
address this argument below. See infra part II.B.3.
0
In Allsup, the court noted that impairment of the right to
exercise peremptory challenges is usually deemed to be
prejudicial error, without a showing of actual prejudice. 566
F.2d at 71 (citing Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct.
824, 835 (1965)). In Nell, the court stated "it is error for a
court to force a party to exhaust his peremptory challenges on
persons who should be excused for cause, for this has the effect
of abridging the right to exercise peremptory challenges." 526
F.2d at 1229 (citing Swain). Although Kirk later argues that
Swain is no longer good law (and reliance on it is improper), at
this stage of the inquiry we are not deciding the issues raised
on the merits, but are simply ascertaining whether Owens-Corning
has preserved this argument for appeal.
18
prejudicial diminution of peremptory challenges, constitutes
reversible error." Daly, 716 F.2d at 1507 (citing Hines v.
Enomoto, 658 F.2d 667, 672 (9th Cir. 1981), cert. denied, 463
U.S. 1211, 103 S. Ct. 3545 (1983); Allsup, 566 F.2d at 71; United
States v. Boyd, 446 F.2d 1267, 1275 n.27 (5th Cir. 1971)). We
believe that Owens-Corning's reference to Daly during the course
of its argument to the district court properly preserved for
appeal the argument that impairment of a peremptory strike
requires reversal. Although Owens-Corning never specifically
articulated that the impairment of a peremptory strike was a
statutory violation, we are of the opinion that raising the
question of the appropriate remedy for the impairment of
peremptory challenges fairly places before us the question of
whether a statutory right to peremptory challenges has been
violated.
2. Denial or Impairment of Peremptory Challenges
We must next decide whether a denial or impairment of
the exercise of peremptory challenges occurs if a defendant
expends or wastes a peremptory challenge to strike a juror who
should have been removed for cause. The Supreme Court
specifically declined to decide this issue in Ross v. Oklahoma,
487 U.S. 81, 108 S. Ct. 2273 (1988), stating, "we need not decide
the broader question whether, in the absence of Oklahoma's
limitation on the ``right' to exercise peremptory challenges, ``a
denial or impairment' of the exercise of peremptory challenges
occurs if the defendant uses one or more challenges to remove
19
jurors who should have been excused for cause."0 Id. at 91 n.4,
108 S. Ct. at 2280 n.4. We do not believe this to be a difficult
issue. Here, the district court failed to strike two jurors who
were challenged for cause, and we determine that this failure was
error. In order to ensure that these two prospective jurors who
exhibited prejudice did not serve on the jury, Owens-Corning
utilized two peremptory strikes. We hold that compelling a party
to use any number of its statutorily-mandated peremptory
challenges to strike a juror who should have been removed for
cause is tantamount to giving the party less than its full
allotment of peremptory challenges. Because 28 U.S.C. § 1870requires that each party shall be entitled to three peremptory
challenges, "a denial or impairment" of that statutory right
occurs whenever a party exercises a peremptory challenge to
strike a prospective juror who should have been removed for
cause. Here, Owens-Corning's statutory right to three peremptory
challenges was impaired.
3. Remedy
Relying on Swain v. Alabama, 380 U.S. 202, 85 S. Ct.
824 (1965), overruled on other grounds by Batson v. Kentucky, 476
U.S. 79, 106 S. Ct. 1712 (1986), Owens-Corning argues that the
impairment or denial of the statutory right to exercise
0
In Ross, the Court observed that under Oklahoma law, a party is
required to expend a peremptory strike in order to preserve for
appeal a challenge to the trial court's refusal to remove that
juror for cause. 487 U.S. at 89, 108 S. Ct. at 2279. There is
no analogous requirement under federal law.
20
peremptory challenges requires the common law remedy of per se
reversal. The common law remedy of per se reversal has a long
history and tradition in our judicial system. As early as the
1890's, the Supreme Court held in Gulf, Colorado & Santa Fe Ry.
Co. v. Shane, 157 U.S. 348, 15 S. Ct. 641 (1895), that to
"impanel a jury in violation of law, and in such a way as to
deprive a party of his right to peremptory challenge, constitutes
reversible error." Id. at 351, 15 S. Ct. at 642. In Shane, a
civil defendant claimed that the trial judge committed error by
failing to adhere to an Arkansas statute that provided each party
three peremptory strikes to be used on a list of eighteen
prospective jurors. Because the trial judge confined the right
to exercise peremptory challenges to only twelve prospective
jurors, the Supreme Court concluded, without a showing of
prejudice, that the trial court violated the statute. Id.Similarly, in Harrison v. United States, 163 U.S. 140, 16 S. Ct.
961 (1896), a criminal defendant argued that the trial judge
erred in allotting him only three peremptory strikes, instead of
the ten to which he was entitled under a federal statute. Because
the defendant wanted to exercise five additional peremptory
strikes, but was precluded from so doing, the Supreme Court
reversed, observing that "[i]f [the defendant] was entitled to
ten peremptory challenges, five persons unlawfully took part as
jurors in his conviction." Id. at 141, 16 S. Ct. at 961. Again,
the Court did not require a showing of prejudice for this
statutory violation. See also Lewis v. United States, 146 U.S.
370, 375-77, 13 S. Ct. 136, 138 (1892) (statutory right provided
21
by Arkansas law requiring defendant to be present during the
exercise of peremptory strikes was violated, thus requiring per
se reversal). Swain continued the tradition of these cases.0
Kirk maintains that Batson has overruled Swain in its
entirety, and that Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273(1988), requires a specific showing of prejudice -- that the jury
0
Kirk cites to a case from the same era, Hopt v. People, 120 U.S.
430, 7 S. Ct. 614 (1887), which she claims Owens-Corning concedes
stands for the proposition that "an erroneous denial of [a]
challenge for cause does not constitute reversible error if the
party is not prejudiced." Plaintiff/Appellee's Rehearing Reply
Brief at 10 (June 12, 1995) (emphasis in original) (citing
Supplemental Brief of Appellant at 4 (June 6, 1995)). We are
troubled by Kirk's argument. First, Owens-Corning does not
concede that a party must show prejudice (i.e., a biased jury) in
order for reversal to occur. Rather, Owens-Corning states that
there can be no per se reversal unless the party proves that a
peremptory strike has been impaired. See Supplemental Brief of
Appellant at 4 (June 6, 1995) (arguing there can be no per se
reversal unless the party is prejudiced by "having to ``waste' its
peremptories on biased veniremembers.")
Second, Hopt does not stand for such a proposition. In
Hopt, the defendant argued that the trial judge made several
errors in ruling on the competency of four jurors. The trial
judge denied all four challenges for cause. However, the
district attorney removed one juror peremptorily and the
defendant removed two jurors with peremptory strikes. The
remaining juror was permitted to sit on the jury, but the Supreme
Court ruled that the trial judge did not err in denying this
challenge for cause. With regard to the two jurors who were
struck by the defendant, the Supreme Court concluded that
assuming arguendo that the trial judge erred in refusing to
strike two jurors for cause, there was no injury to the defendant
because he utilized less than thirteen of the fifteen peremptory
challenges provided by Utah statute. Id. at 436, 7 S. Ct. at
617. As noted in part II.B.2 supra, in order to be entitled to
per se reversal, a party must first show its statutory right to
peremptory strikes was denied or impaired. Because Hopt still
had at least one peremptory strike remaining which he failed to
use on the remaining juror, he failed to prove an impairment.
22
who actually sat was not impartial -- before reversal is
required.0
In Swain, a black defendant raised a challenge to the
prosecution's use of peremptory challenges to strike six black
prospective jurors from the petit jury venire. The Supreme Court
announced a general rule that "[t]he denial or impairment of the
right [to exercise peremptory challenges] is reversible error
without a showing of prejudice." Swain, 380 U.S. at 219, 85 S.
Ct. at 835 (citing Lewis v. United States, 146 U.S. 370, 13 S.
Ct. at 136; Harrison v. United States, 163 U.S. 140, 16 S. Ct.
961; Gulf, Colorado & Santa Fe Ry. Co. v. Shane, 157 U.S. 348, 15
S. Ct. 641). In addition, the Swain Court held that striking
black members of the petit jury venire does not violate the law,
id. at 221, 85 S. Ct. at 836, a determination which has since
been conclusively overruled in Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712 (1986). See Batson, 476 U.S. at 89, 106 S. Ct.
0We understand Kirk to be making two separate arguments. First,
Kirk asserts that assuming arguendo Owens-Corning has raised a
claim of violation of a Seventh Amendment right to an impartial
jury, this argument must fail on the merits because defendant did
not object to the jury that was ultimately seated. We need not
address this point because Owens-Corning does not rely on any
claim that the jury that decided this case was not impartial.
See Supplemental Brief of Appellant at 10 (June 6, 1995) ("Owens-
Corning obviously cannot argue that it has been deprived of any
Sixth Amendment right, nor has it asserted any analogous right
under the Seventh Amendment.") (footnote omitted); Reply Brief of
Defendant/Appellant at 5 n.3 (June 13, 1995) ("Owens-Corning does
not claim that the jury that decided this case was not impartial,
nor does Owens-Corning rest its entitlement to a new trial on the
Seventh Amendment right to an impartial jury.").
Second, as we discuss below, Kirk maintains that Ross'
requirement of showing jury impartiality should apply to
statutory, as well as constitutional, claims of impairment of
peremptory challenges.
23
at 1719 ("[T]he Equal Protection Clause forbids the prosecutor to
challenge potential jurors solely on account of their race . . .
."). Batson removed a prosecutor's unbridled discretion to
exercise peremptory challenges when the Equal Protection Clause
is violated. However, Batson did not reach the situation where
the Equal Protection Clause is not implicated. Indeed, Batson
did not overrule the portion of Swain which held that denial or
impairment of a peremptory strike is per se reversible error.
Stated differently, if the prosecutor does not exercise
peremptory strikes on the basis of race,0 an impairment of that
statutory right to exercise peremptory challenges requires per se
reversal.
Notwithstanding the conclusion that the per se reversal
requirement of Swain survives after Batson, Kirk contends that a
0
In recent years the Supreme Court has recognized additional
circumstances under the Equal Protection Clause in which a trial
judge may interfere with a party's exercise of peremptory strikes
without the consequence of per se reversal. See Powers v. Ohio,
499 U.S. 400, 415, 111 S. Ct. 1364, 1373 (1991) (under Equal
Protection Clause, prosecutor may not exercise peremptory strikes
on the basis of race and criminal defendant may object to race-
based exclusion of jurors effected through peremptory challenges
whether or not defendant and excluded jurors share the same
race); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111
S. Ct. 2077, 2080 (1991) (race-based exercise of a peremptory
challenge by a private litigant in a civil lawsuit violates equal
protection rights of the challenged jurors); Georgia v. McCollum,
505 U.S. 42, __, 112 S. Ct. 2348, 2359 (1992) (Equal Protection
Clause prohibits a criminal defendant from engaging in racial
discrimination in the exercise of peremptory strikes); J.E.B. v.
Alabama Ex. Rel. T.B., __ U.S. __, __, 114 S. Ct. 1419, 1422
(1994) (Equal Protection Clause forbids the exercise of
peremptory challenges on the basis of gender as well on the basis
of race). Nevertheless, because the case before us does not
involve any of these situations implicated by the Equal
Protection Clause, a per se reversal would still be required
under the dictates of Swain.
24
more recent Supreme Court case, Ross v. Oklahoma, 487 U.S. 81,
108 S. Ct. 2273 (1988), abolished the per se reversal remedy in
requiring the party seeking reversal to demonstrate that the jury
actually seated was not impartial. In Ross, the petitioner
argued that the failure of the trial court to strike a juror for
cause and his subsequent "wasting" of a peremptory strike
resulted in a violation of his Sixth and Fourteenth Amendment
right to an impartial jury, and his Fourteenth Amendment right to
due process. Ross, 487 U.S. at 85, 108 S. Ct at 2277. As an
initial matter, the Supreme Court noted that none of the jurors
who actually sat and decided the case were challenged for cause
by defense counsel. Id. at 84, 108 S. Ct. at 2276. Additionally,
there was nothing in the record to suggest that any juror who
actually sat was not impartial. Id. at 86, 108 S. Ct. at 2277.
Moreover, the Court observed that any claim that the jury was
biased must focus not on the challenged juror who was removed via
the exercise of a peremptory strike, but rather on the jurors who
ultimately sat. Id. The Supreme Court held:
[The defendant] was undoubtedly required to
exercise a peremptory challenge to cure the
trial court's error. But we reject the
notion that the loss of a peremptory
challenge constitutes a violation of the
constitutional right to an impartial jury. We
have long recognized that peremptory
challenges are not of constitutional
dimension. They are a means to achieve the
end of an impartial jury. So long as the
jury that sits is impartial, the fact that
the defendant had to use a peremptory
challenge to achieve that result does not
mean the Sixth Amendment was violated. We
conclude that no violation of [the
25
defendant's] [constitutional] right to an
impartial jury occurred.
Id. at 88, 108 S. Ct. at 2278 (emphasis added) (citations and
footnote omitted).
In reaching the question of whether the defendant's
Fourteenth Amendment right of due process was violated, the Court
observed:
Because peremptory challenges are a creature
of statute and are not required by the
Constitution, it is for the State to
determine the number of peremptory challenges
allowed and to define their purpose and the
manner of their exercise. As such, the
"right" to peremptory challenges is "denied
or impaired" only if the defendant does not
receive that which state law provides.
Id. at 89, 108 S. Ct. at 2279 (citations omitted). Under
Oklahoma law, a defendant who disagrees with a trial court's
ruling on a challenge for cause is required to exercise a
peremptory challenge to remove the juror, or else the defendant
waives the right to object on appeal. Id. Further, reversal is
mandated only if the party exercises all of its peremptory
strikes and an incompetent juror sits on the jury. Id.Ultimately, the Court concluded, "[a]s required by Oklahoma law,
[the defendant] exercised one of his peremptory challenges to
rectify the trial court's error . . . . But he received all that
Oklahoma law allowed him, and therefore his due process challenge
fails." Id. at 91, 108 S. Ct. at 2279-80. Thus, Ross holds that
there is no constitutional violation mandating reversal unless a
party can show that the jury was not impartial. Ross is not
controlling, however, because Owens-Corning alleges a statutory,
not a constitutional, injury.
26
Additionally, quite recently, we have spoken on this
issue in a similar case. In United States v. Ruuska, 883 F.2d
262 (3d Cir. 1989), the defendant argued on direct appeal that
his right to exercise a peremptory challenge was impaired, thus
requiring a new trial. In that case, the defendant was granted
an additional peremptory strike, but was later precluded from
exercising this strike. The government argued that any error was
harmless because a substantial right of the defendant was not
affected, that is, the jury that ultimately sat was not
impartial. We rejected the government's invitation to perform a
harmless error analysis. Rather, we acknowledged that the right
to peremptory challenges is a statutory, rather than a
constitutional privilege, and that peremptory challenges may be
"``withheld altogether without impairing the constitutional
guaranties of an "impartial jury" and a fair trial.'" Id. at 268(quoting Frazier v. United States, 335 U.S. 497, 505 n.11, 69 S.
Ct. 201, 206 n.11 (1948)) (emphasis added). We interpreted "the
long line of Supreme Court authority that culminated with Swain
to say that the denial or impairment of the right to peremptory
challenges is reversible error per se." Id. (quoting Swain)
(citations omitted). Though we did not explicitly mention Ross,
we think it clear that we were distinguishing the case at bar
from those cases where a constitutional injury has been alleged.
Thus, a showing of prejudice is not required to reverse a verdict
after demonstrating that a statutorily-mandated, peremptory
challenge was impaired. See also 9A Charles A. Wright and Arthur
R. Miller, Federal Practice and Procedure § 2483, at 124 (1995)
27
("The denial or impairment of the right [to peremptory
challenges] is reversible error without a showing of specific
prejudice.") (citing Swain, 380 U.S. at 219, 85 S. Ct at 835;
Gulf, Colorado & Santa Fe Ry. Co. v. Shane, 157 U.S. 348, 15 S.
Ct. 641 (1895); Carr v. Watts, 597 F.2d 830 (2d Cir. 1979);
Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965)).
We do not stand alone in holding that the denial or
impairment of a peremptory strike requires per se reversal. In
United States v. Cambara, 902 F.2d 144 (1st Cir. 1990), the
defendant argued that he was unfairly forced to expend a
peremptory challenge to strike a juror who should have been
excused for cause. Id. at 147. In that case, the defendant was
entitled by statute to exercise ten0 peremptory strikes and the
district court awarded an additional two challenges for a total
of twelve. The defendant had exhausted all twelve of his
peremptory challenges, but he was not forced to expend one of the
ten to which he was entitled under statute. Instead, he was
forced to waste one of the two additional strikes. Although the
Court of Appeals for the First Circuit held that impairment of an
additional peremptory challenge does not violate any rights of
the defendant, the court recognized that "restricting a
defendant's use of the lawful number of peremptory strikes is
reversible error if a challenge for cause is erroneously denied."
Id. at 147-48 (citations omitted). See also Carr v. Watts, 597
0
Pursuant to Rule 24 of the Federal Rules of Criminal Procedure,
"[i]f the offense charged is punishable by imprisonment for more
than one year . . . the defendant [is entitled] to 10 peremptory
challenges." Fed. R. Crim. P. 24(b).
28
F.2d 830, 833 (2d Cir. 1979) (error in denying challenge for
cause that compels unnecessary use of peremptories is reversible
error);0 United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir.
1977) (erroneous refusal to excuse a juror for cause constitutes
reversible error despite defendant's use of peremptory challenge
where district court's error reduced number of peremptory
challenges); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.
1976) (same) (citing Swain).0
Furthermore, some post-Ross cases from other courts of
appeals, while not concluding that a per se reversal is mandated,
have recognized that Ross only speaks to constitutional
challenges and does not necessarily control non-constitutional or
statutory errors. In United States v. Beasley, 48 F.3d 262 (7th
Cir. 1995), the district court refused to remove three challenged
jurors for cause, whereupon the defendant exercised two of his
ten remaining statutorily-mandated peremptory strikes to remove
two of the jurors. The defendant then objected to the seating of
the third juror. The Court of Appeals for the Seventh Circuit
ultimately concluded that the district court did not abuse its
discretion in failing to strike the three jurors for cause.
However, the Beasley court did note that because the peremptory
strikes were designated as a matter of federal law, it could be
0
As in the case at bar, the party in Carr argued that the
district court impermissibly impaired its statutory right under
28 U.S.C. § 1870 to the exercise of three peremptory challenges.
Id. at 831.
0
We acknowledge that some of these cases were decided prior to
Ross. However, because Ross is distinguishable, we believe that
reliance on pre-Ross cases is not inappropriate.
29
argued that a district court's erroneous refusal to strike a
juror for cause would deprive the defendant of a statutory
peremptory challenge. Id. at 268 n.5. Additionally, in United
States v. Munoz, 15 F.3d 395 (5th Cir.), cert. denied, __ U.S.
__, 114 S. Ct. 2149 (1994), the district court refused to remove
a juror who was challenged for cause, thus requiring the
defendant to exercise a peremptory strike. Although concluding
that the district court did not abuse its discretion, the Court
of Appeals for the Fifth Circuit observed that Ross applied
constitutional standards in reviewing a state criminal
conviction. It expressed doubt as to whether Ross controls a
case on direct appeal and further noted that reversal may be
proper even though the error alleged at trial was not of
constitutional magnitude. Id. at 398 n.1. The Munoz court
continued, "[w]hile peremptory challenges . . . may not be
constitutionally required, it does not follow that a trial
court's wrongful reduction of the number so provided is not
reversible error on direct appeal." Id.Kirk argues that all other courts of appeals that have
addressed the constitutional implications of the use of
peremptory challenges, whether raised in habeas corpus
proceedings0 or in direct criminal appeals,0 have limited their
0
The habeas corpus cases are distinguishable because a federal
court may overturn a state judgment only for constitutional
violations. See Callins v. Collins, 998 F.2d 269, 277 (5th Cir.
1993) (requires a showing of prejudice when alleging due process
violation); Bannister v. Armontrout, 4 F.3d 1434, 1443 (8th Cir.
1993) (citing Ross for proposition that one must show prejudice
when alleging a Sixth Amendment violation), cert. denied, __ U.S.
__, 115 S. Ct. 418 (1994); Heath v. Jones, 941 F.2d 1126, 1132-33
30
inquiry and review to the impartiality of the jury selected. We
agree that all courts subsequent to Ross have correctly required
a showing of prejudice in response to an alleged constitutional
error before concluding that reversal is warranted. However,
Kirk has failed to point to a single case from any court of
appeals that recognizes the distinction between constitutional
and statutory violations, and holds that Ross requires a showing
of prejudice for a statutory violation.0 For the reasons stated
(11th Cir. 1991) (in order to prevail on claim of denial of fair
and impartial jury, one must show prejudice), cert. denied, 502
U.S. 1077, 112 S. Ct. 981 (1992); Gaskins v. McKellar, 916 F.2d
941, 948-49 (4th Cir. 1990) (citing Ross for proposition that one
must demonstrate prejudice when alleging a Sixth Amendment
violation), cert. denied, 500 U.S. 961, 111 S. Ct. 2277 (1991).
0
These cases fail to recognize the key distinction between
violation of the constitutional right to an impartial jury and
the deprivation of the federal statutory right to peremptory
challenges. See United States v. Alexander, 48 F.3d 1477, 1483-
84 (9th Cir. 1995) (citing Ross for proposition that one must
show prejudice in order to prevail on a Sixth Amendment claim);
United States v. Mendoza-Burciaga, 981 F.2d 192, 197-98 (5th Cir.
1992) (no constitutional error absent a showing of prejudice),
cert. denied, __ U.S. __, 114 S. Ct. 356 (1993); United States v.
Farmer, 923 F.2d 1557, 1565 (11th Cir. 1991) (same).
0
Although Kirk cites Kotler v. American Tobacco Co., 926 F.2d
1217 (1st Cir. 1990), vacated on other grounds, __ U.S. __, 112
S. Ct. 3019 (1992), reaffirmed, 981 F.2d 7 (1st Cir. 1992), for
the proposition that one must first show prejudice in the context
of a statutory violation, Kotler does not stand for that
proposition. In that case, the court held that absent a showing
that a peremptory strike was impaired or denied, no reversal is
mandated. Id. at 1226-27. We have recognized a similar
requirement, see supra part II.B.2, that is, before one may
receive the remedy of reversal, one must first prove that the
right to exercise peremptory strikes has been denied or impaired.
Additionally, Kirk cites United States v. McIntyre, 997
F.2d 687, 698 n.7 (10th Cir. 1993), cert. denied, __ U.S. __, 114
S. Ct. 736 (1994), for the proposition that a non-constitutional
or statutory violation only requires a harmless error analysis,
and not per se reversal. In that case, the court held that the
district court did not abuse its discretion in failing to excuse
the juror for cause. Id. at 698. In dicta, the court noted that
31
above, we find Ross and other cases dealing with alleged
constitutional errors to be distinguishable from the case at bar.
Finally, Kirk argues that even if the requirement
imposed by Ross of showing jury bias only applies to
constitutional claims, its logic should nonetheless be extended
to any statutory impairment claim, that is, a party should always
be required to show that the jury that actually sat was biased.
We decline to extend Ross in the absence of further guidance from
the Supreme Court. We hold that the remedy for impairment or
denial of the statutory right to exercise peremptory challenges
is per se reversal without any requirement of proving prejudice.
III. Prior Testimony of Out of Court Witness
even if the district court had erroneously denied the challenge
for cause, no reversal was required because the defendant had
failed to show that the jury was impartial. Id. at 698 n.7. To
the extent that this dicta is in tension with our resolution of
this matter, we reject this argument.
Although Kirk did not bring it to our attention, we are
aware of a recent case from the Court of Appeals for the Ninth
Circuit that is at odds with our decision today. In United
States v. Annigoni, __ F.3d __, 1995 WL 338649 (9th Cir. 1995),
the defendant attempted to exercise a peremptory strike against
an Asian male, and the district court denied the strike based on
Georgia v. McCollom, __ U.S. __, 112 S. Ct. 2348, 2357 (1992).
The court concluded that the district court erred in disallowing
the peremptory strike, because there was an insufficient factual
basis from which to conclude that the strike had been motivated
by racial prejudice. Annigoni, 1995 WL 338649, at *4. Turning
to the remedy for such an erroneous denial of a peremptory
strike, the court, in part relying on Ross, concluded that a
"harmless error" analysis rather than per se reversal was
mandated. We respectfully disagree with that decision. Because
Ross does not control the case of a statutory violation, any
reliance on Ross in this context is misplaced.
32
During the liability phase of the trial, Owens-Corning
offered the expert testimony of Dr. Harry Demopoulos to prove
that the overwhelming majority of asbestos-induced mesotheliomas
are caused by crocidolite asbestos fiber. This testimony
supported Owens-Corning's defense that its product, Kaylo, which
did not contain crocidolite fiber, could not have caused the
decedent's mesothelioma. Over Owens-Corning's objection, Kirk
was permitted to read to the jury the prior trial testimony of
Dr. Louis Burgher from an unrelated New Jersey State Court
asbestos action in 1992. In that case, Dr. Burgher had been an
expert witness for Owens-Corning and testified on cross-
examination that it was possible for mesothelioma to be caused by
chrysotile fibers contaminated with tremolite. Kirk was clearly
attempting to discredit Owens-Corning's defense offered through
Dr. Demopoulos by revealing to the jury that Owens-Corning's
expert witness in a previous case voiced a different and
contradictory opinion as to which asbestos fibers cause
mesothelioma. After the jury returned a verdict in favor of
Kirk, Owens-Corning made a post-trial motion for a new trial
based in part on the alleged admission of hearsay evidence, i.e.,
the prior testimony of Dr. Burgher in an unrelated case. The
district court denied this motion.
Normally, when a new trial is sought by reason of a
district court's alleged error in allowing the introduction of
evidence, we review for abuse of discretion. Lippay v. Christos,
996 F.2d 1490, 1496 (3d Cir. 1993) (citing Link v. Mercedes-Benz,
788 F.2d 918, 921-22 (3d Cir. 1986)). However, where as here the
33
ruling on admissibility of hearsay evidence implicates the
application of a legally set standard, our review is plenary.
Id.; see also United States v. McGlory, 968 F.2d 309, 332 (3d
Cir. 1992).
Owens-Corning argues that the district court erred in
allowing the jury to hear this evidence in light of the fact that
it was hearsay. Although the record is at best vague as to what
the district court's basis was for allowing such testimony, Kirk
attempts to justify its admission under two distinct theories --
either the testimony was not hearsay pursuant to Rule
801(d)(2)(C) of the Federal Rules of Evidence or it was hearsay,
but subject to an exception pursuant to Rule 804(b)(1).0
A. Rule 801(d)(2)(C) of the Federal Rules of Evidence
Kirk first attempts to justify the district court's
admission of the prior trial testimony of Dr. Burgher by arguing
it is an admission by a party opponent since it is a statement by
a person authorized by Owens-Corning to speak concerning
mesothelioma and is thus not hearsay. See Fed. R. Evid.
801(d)(2)(C)0; see also Precision Piping v. E.I. du Pont de
0
Alternatively, Kirk argues that assuming arguendo it was error
to admit the testimony of Dr. Burgher, it was harmless error
because the weight of the medical testimony of Kirk's other
witnesses was overwhelming. In light of our decision to remand
for a new trial because the jury was improperly constituted, we
need not address whether any evidentiary errors may be harmless.
0
Rule 801(d) of the Federal Rules of Evidence states in relevant
part:
(d) Statements which are not hearsay. A statement is
not hearsay if --
34
Nemours, 951 F.2d 613, 619 (4th Cir. 1991) (authority in the
context of 801(d)(2)(C) means "authority to speak" on a
particular subject on behalf of someone else). In her brief,
Kirk argues that Dr. Burgher was authorized by Owens-Corning to
offer his expert opinion about medical literature regarding
mesothelioma and fiber type. Appellee's Brief at 21. At oral
argument, Kirk suggested that the testimony of any expert that
Owens-Corning has previously used in a trial can be used in
future litigation against it as an authorized admission.
In support of this proposition, Kirk cites Collins v.
Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980), which held that
deposition testimony of an expert employed by a bus manufacturer
to investigate an accident was an admission under 801(d)(2)(C).
However, in that case the court made a finding that the expert
witness was an agent of the defendant and the defendant employed
the expert to investigate and analyze the bus accident. Id. The
court determined that in giving his deposition, the expert was
performing the function that the manufacturer had employed him to
perform. As such, the court concluded that the expert's report
of his investigation and his deposition testimony in which he
explained his analysis and investigation was an admission of the
defendant. Id.; see also Theriot v. J. Ray McDermott & Co.,
Inc., 742 F.2d 877, 882 (5th Cir. 1984) (citing Collins v. Wayne
(2) Admission by party-opponent. The statement is
offered against a party and is . . .
(C) a statement by a person authorized by the party to
make a statement concerning the subject.
Fed. R. Evid. 801(d)(2)(C) (emphasis added).
35
Corp., 621 F.2d 777, 781-82 (5th Cir. 1980)) (explaining that
Collins holds that "an agent's statement, made within the scope
of his authority . . . is admissible against the principal as an
admission").
Kirk misconstrues the entire premise of calling expert
witnesses. In theory, despite the fact that one party retained
and paid for the services of an expert witness, expert witnesses
are supposed to testify impartially in the sphere of their
expertise. Thus, one can call an expert witness even if one
disagrees with the testimony of the expert. Rule 801(d)(2)(C)
requires that the declarant be an agent of the party-opponent
against whom the admission is offered, and this precludes the
admission of the prior testimony of an expert witness where, as
normally will be the case, the expert has not agreed to be
subject to the client's control in giving his or her testimony.
See Sabel v. Mead Johnson & Co., 737 F. Supp. 135, 138 (D. Mass
1990). Since an expert witness is not subject to the control of
the party opponent with respect to consultation and testimony he
or she is hired to give, the expert witness cannot be deemed an
agent. See Restatement (Second) of Agency § 1 cmt. a (1958)
("The relation of agency is created as the result of conduct by
two parties manifesting that one of them is willing for the other
to act for him subject to his control, and that the other
consents so to act.")
Because an expert witness is charged with the duty of
giving his or her expert opinion regarding the matter before the
court, we fail to comprehend how an expert witness, who is not an
36
agent of the party who called him, can be authorized to make an
admission for that party.0 See Michael H. Graham, Federal
Practice and Procedure: Evidence § 6722, at 502 (Interim Edition
1992) (the authority of the agent to speak as to a subject must
be established at trial). We are unwilling to adopt the
proposition that the testimony of an expert witness who is called
to testify on behalf of a party in one case can later be used
against that same party in unrelated litigation, unless there is
a finding that the expert witness is an agent of the party and is
authorized to speak on behalf of that party. Accordingly, we
find Dr. Burgher's prior trial testimony to be hearsay in the
context of the present trial.
B. Rule 804(b)(1) of the Federal Rules of Evidence
Because the testimony of Dr. Burgher is hearsay, we
must next inquire whether it falls within any of the hearsay
exceptions enumerated in the Federal Rules of Evidence. Kirk
argues that Dr. Burgher's testimony falls within the former
testimony hearsay exception of Rule 804(b)(1). In order for
former testimony to be admissible as an exception to the hearsay
rule: (1) the declarant must be unavailable; (2) testimony must
be taken at a hearing, deposition, or civil action or proceeding;
0
In the case before us, unlike Collins, there was no explicit
finding on the record that Dr. Burgher was an agent of the
defendant. To the extent that Collins holds that an expert
witness who is hired to testify on behalf of a party is
automatically an agent of that party who called him and
consequently his testimony can be admitted as non-hearsay in
future proceedings, we reject this rule.
37
and (3) the party against whom the testimony is now offered must
have had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination. See Fed. R.
Evid. 804(a)(5), (b)(1).0 Because Dr. Burgher testified in open
court during the state court action, no one disputes that the
second element has been satisfied.
Regarding the first element, we note that it is an
abuse of discretion for a district court to admit former
testimony into evidence under Rule 804(b)(1) without a finding of
unavailability. See O'Banion v. Owens-Corning Fiberglas Corp.,
968 F.2d 1011, 1014 (10th Cir. 1992) (district court abused its
discretion in admitting former testimony of expert where there
0
Rule 804 of the Federal Rules of Evidence states in relevant
part:
(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another
hearing of the same or different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.
Fed. R. Evid. 804(b)(1) (emphasis supplied).
"Unavailability" is defined in Rule 804 as follows:
(a) Definition of unavailability. "Unavailability as a witness"
includes situations in which the declarant --
(5) is absent from the hearing and the proponent of a statement
has been unable to procure the declarant's attendance . . . by
process or other reasonable means.
Fed. R. Evid. 804(a)(5) (emphasis supplied).
38
was no showing of unavailability). Because there was no finding
on the record as to unavailability, if the district court based
admitting this testimony on Rule 804(b)(1), we hold that the
district court abused its discretion in allowing this former
testimony into evidence.
Normally, our inquiry would end here after determining
that former testimony cannot be admitted absent specific findings
of unavailability. However, because of the likelihood that an
offer may be made during the retrial of this matter to admit this
testimony as former testimony, we believe further discussion is
warranted.
We observe that it is the proponent of the statement
offered under Rule 804 who bears the burden of proving the
unavailability of the declarant. United States v. Eufracio-
Torres, 890 F.2d 266, 269 (10th Cir. 1989), cert. denied, 494
U.S. 1008, 110 S. Ct. 1306 (1990) (citing Ohio v. Roberts, 448
U.S. 56, 65, 100 S. Ct. 2531, 2538-39 (1980)); 2 John William
Strong et al., McCormick on Evidence § 253, at 134 (4th ed. 1992)
("The proponent of the hearsay statement must . . . show that the
witness cannot be found"). We can find nothing in the record
that indicates any "reasonable means" employed by Kirk to procure
the services of Dr. Burgher so that he might testify at trial.
See McCormick § 253, at 134 (mere absence of the declarant,
standing alone, does not establish unavailability); see also
Moore v. Mississippi Valley State University, 871 F.2d 545, 552
(5th Cir. 1989) (deposition inadmissible in civil trial where no
evidence to establish unavailability offered).
39
Kirk claims that Dr. Burgher, who is a resident of
Nebraska, was beyond her ability to subpoena and was thus
unavailable. See Fed. R. Civ. P. 45(c)(3)(A)(ii).0 However,
Kirk made no independent attempt to contact Dr. Burgher, offer
him his usual expert witness fee, and request his attendance at
trial.0 Because Dr. Burgher was never even as much as contacted,
Kirk has failed to prove that she used "reasonable means" to
enlist his services.
0
Rule 45 of the Federal Rules of Civil Procedure states in
relevant part:
(c) Protection of Persons Subject to Subpoenas.
(3)(A) On timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it --
(ii) requires a person who is not a party or an officer
of a party to travel to a place more than 100 miles from the
place where that person resides, is employed or regularly
transacts business in person . . . .
Fed. R. Civ. P. 45(c)(3)(A)(ii).
0
At oral argument, Kirk argued that it was the responsibility of
Owens-Corning to locate and contact Dr. Burgher and establish his
availability because the district court requested Owens-Corning
to determine whether he would be available to testify. To the
extent that the district court placed the burden on Owens-Corning
to establish the unavailability of Dr. Burgher, the district
court made an error of law in shifting the burden of proof. Kirk
then articulated what we term a "convenience" argument, that is,
she argued that Dr. Burgher was Owens-Corning's expert and Owens-
Corning was in a better position to locate Dr. Burgher because it
had Dr. Burgher's telephone number. To the extent that Kirk is
advocating that Owens-Corning should undertake the task of
locating a witness for Kirk so that she may use that testimony
against Owens-Corning, we reject any such notion. For the same
reasons we protect an attorney's work product from discovery, see
Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 511,
67 S. Ct. 385, 394 (1947) ("Inefficiency, unfairness, and sharp
practices would inevitably develop . . . . The effect on the
legal system would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served."), we do
not believe that Owens-Corning had any duty to assist Kirk in
preparing her case.
40
We next address whether Owens-Corning had an
opportunity and similar motive to develop the testimony of Dr.
Burgher at the prior unrelated state court trial.0 The
similarity of motive requirement assures "that the earlier
treatment of the witness is the rough equivalent of what the
party against whom the statement is offered would do at trial if
the witness were available to be examined by that party." United
States v. Salerno, 937 F.2d 797, 806 (2d Cir. 1991); see also 2
Steven A. Saltzburg & Michael M. Martin, Federal Rules of
Evidence Manual 400 (5th ed. 1990) ("The way to determine whether
or not motives are similar is to look at the similarity of the
issues and the context in which the opportunity for examination
previously arose.").
There was no finding by the district court that Owens-
Corning had an opportunity and similar motive to examine Dr.
Burgher. Further, during oral argument, counsel for Kirk
indicated that the only document before the district court from
the state court trial was the transcript of Dr. Burgher's
testimony. The district court did not have the complaint,
answer, or jury charge from the state court proceedings. Thus,
even if the district court had attempted to make a finding as to
opportunity and similar motive, it would have been unable to
reach a well-reasoned conclusion based on the information before
0
Again, although we need not reach this issue absent a finding of
unavailability, because of the likelihood that an offer may be
made during the retrial to admit this evidence as former
testimony, we believe further discussion is warranted.
41
the district court.0 See McCormick § 304, at 317 (courts must
look to the operative issue in the earlier proceeding).
Accordingly, we must conclude that Kirk failed to prove that
Owens-Corning had an opportunity and similar motive to examine
Dr. Burgher.
IV. Introduction of Interrogatory of Settled Co-
Defendant
Kirk settled the instant action with Garlock and
several other defendants prior to trial. At trial, Owens-Corning
sought in its cross-claim to prove that the decedent was exposed
to products made by Garlock. If the jury were to conclude that
the decedent's injuries had been caused in whole or part by
exposure to Garlock products, then Owens-Corning could eliminate
or substantially reduce its liability. Conversely, it was in
Kirk's financial interest to prove that the decedent was exposed
to only Owens-Corning products. In an effort to rebut the
testimony of an Owens-Corning witness who testified that Garlock
gaskets were present in the New York shipyard during the years
that the decedent worked there, Kirk read into evidence an
interrogatory response which was prepared and filed by Garlock in
0
For instance, the statement elicited from Dr. Burgher during
cross-examination at the state trial may not have warranted
redirect by Owens-Corning in light of its theory of defense. See
McCormick § 302, at 307 ("Circumstances may differ sufficiently
between the prior hearing and the present trial to bar admission
. . . as where questions on a particular subject would have been
largely irrelevant at the earlier proceeding."). Because we do
not have the pleadings, we cannot determine whether an
opportunity and similar motive existed.
42
defense of this action. Of course, at the time this
interrogatory was read to the jury, Garlock was no longer a party
to this lawsuit. Specifically, counsel for Kirk read the
following statement to the jury:
Since Garlock products are bonded and/or
encapsulated and treated in such a manner
that they do not, when used in the manner for
which they were intended, emit meaningful
levels of asbestos dust and fibers, no
restrictions or limitations on use are
necessary.
App. at 513. In response to Owens-Corning's closing remarks,
counsel for Kirk reminded the jury:
I read you from the Garlock interrogatory,
Garlock product is bonded, encapsulated, it
does not emit dust.
App. at 545.
Owens-Corning argues that the district court erred in
admitting this interrogatory response because the interrogatory
answer was pure hearsay. Kirk attempts to justify the admission
of this interrogatory response under the catch-all or residual
exception, Rule 803(24) of the Federal Rules of Evidence.0 As
0
Rule 803 of the Federal Rules of Evidence states in relevant
part:
The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
. . .
Other exceptions. A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules
and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes
43
stated previously, our standard of review is plenary where the
admissibility of hearsay evidence "implicates the application of
a legally set standard." See supra part III.
As a preliminary matter, we note that the plain
language of the rule requires the proponent of the hearsay
statement to put the adverse party on notice that the proponent
intends to introduce the statement into evidence. We have
interpreted this to mean that the proponent must give notice of
the hearsay statement itself as well as the proponent's intention
specifically to rely on the rule as a grounds for admissibility
of the hearsay statement. United States v. Pelullo, 964 F.2d
193, 202 (3d Cir. 1992) (citing United States v. Furst, 886 F.2d
558, 574 (3d Cir. 1989)). Even assuming arguendo that Owens-
Corning was on notice that Kirk intended to introduce this
evidence at trial, we observe from the record that Kirk never
gave notice to Owens-Corning that she intended to introduce this
evidence under Rule 803(24). App. at 512. We recognize that the
advance notice requirement of Rule 803(24) can be met where the
proponent of the evidence is without fault in failing to notify
his adversary and the trial judge has offered sufficient time, by
means of granting a continuance, for the opponent to prepare to
contest its admission. See United States v. Bailey, 581 F.2d
known to the adverse party sufficiently in advance of the trial
or hearing to provide the adverse party with a fair opportunity
to prepare to meet it, the proponent's intention to offer the
statement and the particulars of it, including the name and
address of the declarant.
Fed. R. Evid. 803(24) (emphasis added).
44
341, 348 (3d Cir. 1978) (the purposes of the rule and the
requirement of fairness are satisfied under such circumstances).
Because of the lack of notice by Kirk that she intended to rely
on Rule 803(24) and the lack of a showing by Kirk as to why it
was not possible to provide Owens-Corning with notice, the
district court erred in admitting this evidence at trial.
Turning to the substance of the rule itself, we note
that in order for the hearsay statement to be admitted, it must
have "equivalent circumstantial guarantees of trustworthiness."
Fed. R. Evid. 803(24); see also Michael H. Graham, Federal
Practice and Procedure: Evidence § 6775, at 737-39 (Interim
Edition 1992) (factors bearing on trustworthiness include the
declarant's partiality, i.e., interest or bias). Owens-Corning
argues that the interrogatories of Garlock lack trustworthiness
and are self-serving. Kirk submits that the interrogatory
answers are trustworthy because they are signed and sworn under
penalty of perjury.0 We find that an interrogatory response of a
co-defendant who is seeking to avoid liability lacks the
"circumstantial guarantees of trustworthiness" that are
contemplated by Rule 803(24) of the Federal Rules of Evidence.
Garlock had every incentive to set forth the facts in a light
0
There is nothing in the record to indicate that the district
court made any findings as to the reliability of the Garlock
interrogatories. See United States v. Chu Kong Yin, 935 F.2d
990, 1000 (9th Cir. 1991) (requiring specific findings regarding
the requisite elements of Rule 803(24)); United States v.
Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (district
court must find that the statements met the requirements of the
rule in order for the appellate court to consider the
admissibility of the statement under 803(24)).
45
most favorable to itself, while at the same time still answering
the interrogatories truthfully. See United States v. DeLuca, 692
F.2d 1277, 1285 (9th Cir. 1982) (excluding statement under
residual hearsay exception because of motive to exculpate oneself
after indictment or investigation). Using these interrogatory
responses to prove that Garlock products could not have caused
the decedent's illness without the opportunity for cross-
examination implicates many of the dangers the hearsay rule is
designed to prevent. Accordingly, the district court erred in
admitting this evidence.
V. Delay Damages
Finally, Owens-Corning argues that it was improper as a
matter of law for the district court to award delay damages to
the plaintiff pursuant to Rule 238 of the Pennsylvania Rules of
Civil Procedure because it is a procedural rule and should not be
applied by federal courts sitting in diversity. Owens-Corning
argues in the alternative that even if it is permissible for a
federal court sitting in diversity to award delay damages
pursuant to Rule 238, it was improper here because: (1) the
entire delay was caused by the plaintiff's strategic decision to
file simultaneous federal and state court actions and her failure
to request a remand of the federal action from the multidistrict
docket when settlement negotiations reached an impasse and (2)
the district court miscalculated the damage award in failing to
account for a delay of approximately two years that was caused by
a judicial stay imposed by the Panel on Multidistrict Litigation.
46
Owens-Corning maintains that because it was not responsible for
the delay, it should not be required to pay delay damages for
that period.
A. Rule 238 of the Pennsylvania Rules of Civil
Procedure -- Substantive or Procedural?
First, we must address Owens-Corning's argument that a
federal court sitting in diversity cannot apply Rule 238 of the
Pennsylvania Rules of Civil Procedure because it is a procedural
rather than a substantive rule. Yet, ultimately, Owens-Corning
concedes, as it must, that this question has already been decided
by this Court in Fauber v. Kem Transportation and Equipment Co.,
876 F.2d 327 (3d Cir. 1989). In that case, we held that Rule 238
is substantive and must be followed by federal courts sitting in
diversity cases. Id. at 328. Counsel is thus implicitly asking
this panel to overrule Fauber. We note that this Court's
Internal Operating Procedures prohibit a panel of this Court from
overruling a published opinion of a previous panel. See Internal
Operating Procedure Rule 9.1 ("[T]he holding of a panel in a
reported opinion is binding on subsequent panels."). Because we
are bound by Fauber, and in any event do not question its wisdom,
we reiterate that it is proper for a federal district court
sitting in diversity to award delay damages to a plaintiff under
Rule 238 of the Pennsylvania Rules of Civil Procedure.
B. Did Plaintiff Cause Delay?
47
Second, Owens-Corning maintains that Kirk was
responsible for the delay because she filed simultaneous federal
and state court actions and additionally failed to make an
application to remand the federal action from the multidistrict
docket when settlement negotiations proved fruitless.
Our review of the applicability of Rule 238 in a
diversity case is plenary. Fauber, 876 F.2d at 329. Rule 238 of
the Pennsylvania Rules of Civil Procedure states in relevant
part:
(a)(1) At the request of the plaintiff in
a civil action seeking monetary relief for .
. . death[,] . . . damages for delay shall be
added to the amount of compensatory damages
awarded against each defendant . . . found to
be liable to the plaintiff in the verdict of
a jury . . . .
(2) Damages for delay shall be awarded
for the period of time
(i) in an action commenced before
August 1, 1989, from the date the plaintiff
first filed a complaint or from a date one
year after the accrual of the cause of
action, whichever is later, up to the date of
the . . . verdict . . . .
(3) Damages for delay shall be
calculated at the rate equal to the prime
rate as listed in the first edition of the
Wall Street Journal published for each
calendar year for which the damages are
awarded, plus one percent, not compounded.
(b) The period of time for which damages
for delay shall be calculated under
subdivision (a)(2) shall exclude the period
of time, if any,
(1) after which the defendant has made
a written offer of
(i) settlement in a specified sum
with prompt cash payment to the plaintiff, or
(ii) a structured settlement
underwritten by a financially responsible
entity, and continued that offer in effect
for at least ninety days or until
48
commencement of trial, whichever first
occurs, which offer was not accepted and the
plaintiff did not recover by award, verdict
or decision, exclusive of damages for delay,
more than 125 percent of either the specified
sum or the actual cost of the structured
settlement plus any cash payment to the
plaintiff; or
(2) during which the plaintiff caused
delay of the trial.
Pa. R. Civ. P. 238 (1988) (emphasis added).
According to the plain language of the rule, a
defendant must pay delay damages unless the delay falls within
the excludable time as set forth in the rule. Owens-Corning
concedes that it did not make a settlement offer which would
satisfy the rule. Thus, the only other way for the defendant to
be relieved from paying delay damages would be if the plaintiff
caused the delay.
According to Owens-Corning, but for the plaintiff's
strategic decision to file a federal asbestos action, the matter
could have been resolved long ago in state court. Here, Kirk
would have been forced to abandon her remedy in federal court and
seek relief only in the state forum. To adopt the rule of law as
advocated by Owens-Corning, we would be required to hold that
delay is per se attributable to a plaintiff anytime a plaintiff
files a diversity action in federal court when a suitable state
forum exists. Nothing in Rule 238 contemplates that a plaintiff
must forgo any rights in order to be entitled to delay damages,
and we are unwilling to adopt such a proposition.
In support of its argument that Kirk was responsible
for the delay in failing to request a remand from the
49
multidistrict docket, Owens-Corning relies on Babich v.
Pittsburgh & New England Trucking Co., 386 Pa. Super. 482, 563
A.2d 168 (Pa. Super. Ct. 1989). In that case, the plaintiff's
motion for delay damages pursuant to Rule 238 was denied by the
trial court and plaintiff appealed. Babich, 386 Pa. Super. at
487, 563 A.2d at 171. In assessing who was responsible for the
almost seven year delay between the commencement of suit and the
jury verdict, the court observed:
[T]he chief reasons for delay in this case
cannot be attributed to defendants. [One of
the defendants] filed a Chapter 11 bankruptcy
in federal court six months after
[plaintiff's] complaint was filed and
[plaintiff] did not successfully obtain
relief from the automatic stay until
approximately two years and four months later
despite cooperation from counsel for the
bankruptcy and counsel for the insurance
company. The other primary delay in the case
was [plaintiff's] failure to place the case
at issue in a speedy fashion. [Plaintiff]
fails to point to any delay attributable to
defendants and we find none upon review of
the record.
Babich, 386 Pa. Super. at 487, 563 A.2d at 171.
Owens-Corning argues that because Kirk did not seek a
remand from the multidistrict docket, she failed to obtain relief
from the MDL stay just as the plaintiff in Babich failed to
obtain relief from the automatic stay. Owens-Corning's reliance
on Babich is misplaced. In that case plaintiff could have sought
relief and moved the trial along, because opposing counsel was
cooperating with and assisting counsel. Here, however, according
to Judge Weiner's Pretrial Order, the case could be remanded for
trial only if there was a finding that the defendant was acting
50
in bad faith during the settlement negotiations. To the extent
that Owens-Corning is found to have acted in bad faith, this
would militate against a finding that delay was caused by the
plaintiff.
C. Is Delay Not Caused By The Defendant Excludable?
Third, Owens-Corning argues that because the delay was
caused by the MDL Order, it offends traditional notions of fair
play and due process to make a defendant pay for another's delay.
Owens-Corning asks that the award of delay damages be
recalculated and further maintains that it is unconstitutional to
impose delay damages on it for this time period because it was
never acting in bad faith and the delay was caused by the court.
Were we to adopt the rule of law as articulated by Owens-Corning,
we would have to redraft Rule 238(b)(2) to state "during which
the defendant did not cause the delay of the trial," instead of
"during which the plaintiff caused delay of the trial." We are
not so inclined and we find that the plaintiff caused no delay of
the trial.
Owens-Corning also argues that notwithstanding the
language of the rule, requiring it to pay for delay caused by the
judiciary is a violation of due process. Owens-Corning fails to
comprehend the theory underlying Rule 238. Delay damages merely
compensate a plaintiff for money that he or she would have earned
on the award if he or she had promptly received it. Costa v.
Lauderdale Beach Hotel, 534 Pa. 154, 160, 626 A.2d 566, 569 (Pa.
1993). The rule also functions to prevent a defendant from being
51
unjustly enriched by keeping interest that could be earned during
the litigation process on what is essentially the plaintiff's
money. Id. n.6. We find no merit to Owens-Corning's argument
that delay damages violate due process in this instance.
Accordingly, we find no error in the district court's decision to
award delay damages to the plaintiff.
VI. Conclusion
The refusal to remove two jurors who were challenged
for cause was an abuse of discretion. Because the defendant was
required to waste two of its peremptory strikes in order to
remedy this error, a per se reversal is required. Allowing into
evidence the prior testimony of a witness in an unrelated state
court trial was error, as was permitting the introduction into
evidence of an answer to an interrogatory by a settled co-
defendant. Accordingly, we will reverse the judgment of the
district court and remand the matter to the district court for a
new trial. Costs taxed against Kirk.
52