Mesothelioma Info - Mesothelioma Asbestos
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 94-1745 and 94-1746
SARAH A. KIRK, Administratrix of the Estates of KIRK, Alfred T., Deceased and KIRK, Sarah A. in her own right
v.
RAYMARK INDUSTRIES, INC.; EAGLE-PICHER INDUSTRIES, INC.; KEENE CORPORATION; GARLOCK INC; OWENS-CORNING FIBERGLAS CORPORATION; CELOTEX CORP.; GAF CORPORATION; OWENS-ILLINOIS GLASS COMPANY
Owens-Corning Fiberglas Corporation, Appellant
Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 88-cv-03736)
Argued February 14, 1995 BEFORE: STAPLETON, GREENBERG and COWEN, Circuit Judges
(Filed April 14, l995 )
Joseph M. Greitzer Jerry Kristal (argued) Greitzer & Locks 1500 Walnut Street 20th Floor Philadelphia, PA 19102
Counsel for Appellee Sarah A. Kirk, Administratrix of the Estates of KIRK, Alfred T., Deceased and KIRK, Sarah A. in her own right
Robert N. Spinelli W. Matthew Reber (argued) Kelley, Jasons, McGuire & Spinelli 1617 JFK Blvd. Suite 1400 Philadelphia, PA 19103
Counsel for Appellant Owens-Corning Fiberglas Corporation
OPINION
COWEN, Circuit Judge.
This asbestos-related personal injury action was tried to a jury in the United States District Court for the Eastern District of Pennsylvania. The jury returned a verdict in favor of the plaintiff in excess of two million dollars. On application by counsel, the district court granted plaintiff delay damages in the amount of $ 520,684. In these consolidated appeals, we are called on to determine whether the district court abused its discretion by denying defendant's challenge for cause of two jurors who allegedly evidenced bias against the defense. Additionally, we are called upon to determine whether the district court committed an error of law by: (1) allowing plaintiff to introduce into evidence the prior testimony of an out of court expert witness from an unrelated state court action; (2) permitting plaintiff to introduce the interrogatory responses of a co-defendant who settled with the plaintiff prior to trial; (3) awarding plaintiff delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure. Because we conclude that the district court abused its discretion in denying defendant's challenge for cause of two jurors during voir dire, we will reverse the judgment of the district court and remand for a new trial on the issue of damages and liability.[fn1] Since it is likely that the hearsay issues and the issue of delay damages may arise again during the new trial, we deem it appropriate to offer the district court guidance. On these subjects, we conclude that the district court erred as a matter of law in allowing the introduction of hearsay evidence, but did not err in ruling that delay damages would be permitted when delay was caused by a judicial stay for which the plaintiff was not responsible.
I. Factual and Procedural History Alfred Kirk ("decedent"), a retired painter, died on July 5, 1988 at the age of 65 from malignant asbestos- induced mesothelioma. Mrs. Sarah Kirk ("Kirk"), suing on behalf of herself and her deceased husband's estate, filed this diversity action against eight defendants, including Owens-Corning Fiberglas Corporation ("Owens-Corning").[fn2] 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. On December 13, 1993, the trial (which was reverse-bifurcated) began with issues of medical causation and damages. At the conclusion of this phase of the trial, the jury returned a verdict in favor of the Estate of Alfred Kirk for $ 1.2 million and in favor of Sarah Kirk for $ 810,000. The liability phase of the trial commenced several days later before the same jury that had previously heard the damages phase. At the conclusion of the liability trial, the jury returned a verdict against Owens-Corning. The jury also found that the decedent was not exposed to dust emitted by any asbestos-containing product manufactured by co-defendant Garlock, Inc. ("Garlock"). Following the jury verdict, Owens-Corning moved for a new trial alleging several trial errors. This application was denied by the district court. Kirk filed an application for delay damages pursuant to Rule 238 of the Pennsylvania Rules of Civil Procedure, which the district court granted in the amount of $ 520,684. Owens-Corning appeals from both the judgment and the award of delay damages. Owens-Corning argues that the district court made several errors at trial which unfairly prejudiced it during the damage and liability phases of the trial, and that the district court improperly denied its post-verdict motion for a new trial. Finally, Owens-Corning claims that delay damages should not have been awarded to Kirk, because the delay was caused by the plaintiff filing simultaneous federal and state court actions and/or caused by the MDL order staying all asbestos cases, and was not caused by any bad faith on the part of Owens-Corning. We will address each of these arguments seriatim. The district court had jurisdiction to hear this case pursuant to 28 U.S.C. ß 1332. Our jurisdiction is premised on 28 U.S.C. ß 1291 as the judgment entered was a final order.
Mesothelioma Info
Mesothelioma asbestos is a rare type of cancer that affects the mesothelial tissue of three large body cavities, yielding three distinct types of the disease: pleural mesothelioma (affecting the pleura), peritoneal mesothelioma, (affecting the peritoneum) and pericardial mesothelioma (affecting the pericardium).
Causes of mesothelioma have been limited to asbestos exposure. If you or a loved one has been diagnosed with malignant mesothelioma, contact an asbestos attorney to get information regarding your right to a mesothelioma settlement.
Increased public awareness of malignant mesothelioma has helped to pave the way for an increase in mesothelioma litigation.