Decision of the United States Court of Appeals for the Third Circuit, affirming a judgment in which the jury properly apportioned damages by causes in a lung cancer death case, between tobacco smoking and asbestos exposure.
Decision of the United States Court of Appeals for the Third Circuit, affirming a judgment in which the jury properly apportioned damages by causes in a lung cancer death case, between tobacco smoking and asbestos exposure.
Decision of the United States Court of Appeals for the Third Circuit, affirming a judgment in which the jury properly apportioned damages by causes in a lung cancer death case, between tobacco smoking and asbestos exposure.
FOR THE THIRD CIRCUIT No. 86-1197 VIRGINIA PARKER, Ex.cutrix ot the Estate of ARTHUR PARKER, d.c.as.d, and VIRGINIA PARKER, in her own ri9ht, Appellant v. BELL ASBESTOS MINES, LTD., LAXE.ASBESTOS OF QUEBEC, TURNER NEWALL LTD., tlk/a CASSIAR ASBESTOS CORPORATION LTD., CHARTER CONSOLIDATED, CHARTER CONSOLIDATED INVESTMENT, TURNER ASBESTOS FIBERS LIMITEO, et ale .. APPEAL FROM THE UNInO DISTRICT COURT FOR THE EASTERl;J-'bISTRICT OF PENNSYLVANIA (D.C. Civil No. 83-3289) Arqued November 30, 1987 Befor.: WEIS, HIGGINBOTHAM, and HANSMANN, Circuit Judges. Fil.d DEC aD 1981 Daniel G. Childs, Esquir. (ARGUED) Joseph D. Sbein, P.C. 235 S. 17th Stre.t Philadelphia, PA 11103 Attorney tor Fredric L. Goldt.in, Esquire (ARGUED) Ellen Brown Furman, Esquire Laura J. Meltzer, Esquir. Goldfein , Joseph Packard Buildinq, 17th Floor S.E. Cor. 15th' Ch tnut Streets Philadelphia, PA 19102 Attorneys to, Appelle, Bell Asbestos Min.,. Ltd. Myron J. Bromberg, Esquire (ARGUED) Moira L. Brophy, Esquire PorZio, Bromberg , Newman, P.C. 163 Madison Av.nue Horristown, New Jersey 07960 Cozen and O'Connor The Atrium, Third Floor 1900 Market Str t Philadelphia, PA 19103 Atto,neys tor Appellee Lake Asbesto. of Qu.b.c. Ltd. OPINION OF THE COURT PER CURIAM. The plaintiff's decedent di.d of lung cancer in 1982. During the pr.ceding twenty years, he had been employed as a plant engineer by the Amatex Corporation (torm.rly American Asbestos Textil. Corporation) in Norri.town, P.nnsylvania. The company manufactur textil.s containing asb.stos supplied by some of the d.f.ndants. According to t timony, there was a substantial m.a.ur. of a,be.to, dust in the plant. Decedent work.d primarily in an air-condition.d office, ,.parat.d by valls and door. from the .. facility. OVer a pariod at torty y.ars, h. habitually ok.d about a pack and a half of cigar.tt per day, for a total of sixty "pack y.ar "1 1. A "pack y.ar" d.note, cumulative .xpo.ure to cigarette smoke. One pack a day for on. year equal. on. pack y.ar. 2 The plaintiff' edical expert testified that the combined effects of exposure to asbestos and cigarette smoKing caused the carcinoma. The defendant's expert testified that cigarette oking alone caus.d the decedent'. death. Under a revers. bifurcation procedure, the district court tried the damage. i ue before determining liability. The judge submitted to the jury interrogatories on the cause of death as well as the amount and apportionment of damages. The jury found that s.oking cigarettes contributed sixty percent, and inhaling asbestos torty percent, to the develop nt of the decedent's lung cancer. The court reduced total damages, fixed at $214,000, to $85,600 to retlect the percent of causation attributable to asb.stos exposure. Sefore trial, plaintiff had settled with defendant Turner Newall Ltd. for $95,000. Because that amount .xceeded the judgment for plaintiff, the district court, applying the Pennsylvania Unitorm Contribution Among Joint Tort-feasors Act, 42 Pa, Cona. stat. Ann. I 8321, determined that the verdict had been satisfied and entered judgment for defendants. Plaintiff has appealed, contending that the di.trict court erred in directing apportionaent of da"ges, and in tailing to allow delay 4aaage. under Pennsylvania Rule of Civil Procedure 238. Shortly before trial, the Pennsylvania Superior court in Martin y. Jphns-Manyille Cprp., 349 Pa, Super. 46, 502 A.2d 1264 (1985) (Martin I), reV'd, Pa, ____ , 528 A.2d 947 3 (1987), held that a jury could reduce damage. for pulmonary di.ea.e to the extent that cigarette smoking caused the disability. While the Parker appeal was pendinq in this court, the Pennsylvania Supreme Court, by a clo.ely divided vote, rever.ed the judqment in Martin I and directed a new trial on damage. only. Martin v. ovans-Corning [themla Corp., _ Pal _, 528 A.'2d 947 (1987) (Martin II). Two justices joined with Justice Lar n in the Martin II plurality opinion holding that the jury's apportionment could not stand because it was ba.ed on speculation. Three justices dissented. In his concurring opinion, Ju.tice McOermott stated: "The Majority Opinion (plurality] stands for a single proposition, i.e., under the facts and circumstances of this case there was not enough evidence to submit the i ue of apportionment to the jury. With this I can agre . " 14. at ____ , 528 A.2d at 951. But he c.utioned that the judqment of the court did not mean that "evidence of contributory negligence is in.dmis.ible in an a.be.to.i. c " Nor were the defendants to be precluded from "introducinq new evidence of decedent's n.qliqence." 14. at ____ , 528 A.2d .t 951. lecau.e only two ju.tice. joined Ju.tice Lar.en's opinion, it do not repr ent a aajority view, and thus i. not considered controlling precedent. Varaus y, Pitaan Mfg. Cg., 675 F.2d 73, 75 (3d Cir. 1982). Therefore, Justice McDermott's concurrence states the li.ited boldinq of the court. A. noted above, Ju.tice McOermott re.tricted the Martin II decision to the 4 sufficiency of the evidence. In concert with the three dissenting justices, he also emphasized that the plaintiff's own conduct may be a substantial cause in bringing about his harm. The narrow holdinq of Martin II requires comparison of the factual backqround there with that pre.ently before us. As plaintiff pointed out in her initial brief: -There are sUbstantial differences between Martin II and the instant appeal. For example, Martin II addressed the situation where two distinct disea.e processes contributed to the plaintiff's disability." Indeed, in that case the evidence differentiated a condition in the upper lobe of the lung caused by smoking from one in the lower lobe attributable to asbestos inhalation. In this case, d.cedent has only one condition which the jury found was caused by two toxic agents. The Martin I jury was charged to determine "what percentage of his condition [was] due to cigarette smokinq." In the ca.e at pand the interrogatories asked the jury to state Itas a percentage, how much each [cigarettes and a.bestos] contributed to the development of Mr. Parker's lung cancer." Apparently, a majority of the pennsylvania Supreme court agre.s that section 433A(1) (b) of the R tat nt (Second) of Tort xpr state law on the subject. iAA 14. at ____ , 528 A.2d at 9.9. That section reads: "Damage. for harm are to be apportioned a.ong two or more cause. where Cb) there is a r.asonable basis for determining the contribution of each cause to a .ingle harm." 5 Death in this case resulted from only one cause -- carcinoma of the lung. The issue, therefore, is whether the .videnc. was sufficient for the jury to reasonably allocate the two precipitating factors as sources of the lung cancer. Concededly no testimony by any of the .xperts assigned aath.matical percentages to .ither cause. Not surprisingly, as in many cas of this natur., the exp.rts' opinion. lacked . unanimity. Dr. Rubin, plaintiff's expert, testified that tobacco smoke and asb.stos act synergistically to cause cancer. He noted that in nonsmokers cancer of the lung is rare. conversely, Dr. Rubin said, "smoking by itself produce. cancer of the lung." He stated that the risk of cancer to a sixty pack-y.ar smok.r is fift.en to twenty times that of a nonsmoker. In nonsmokers exposed to asbestos, a ri.k of cancer is moderately increased thr - to fourfold. However, when a person smokes tobacco and inhal a.b to., "the combination i. ravaging" and the "risk of g.tting cancer of the lung become. a.tronomic." On the other hand, Dr. Cooper, a pathologi.t call.d by defendant, opined that a synerqistic .ff.ct occurs only in .aok.r. exposed to hiVh l.vel. of be.to.. On.n umption that d.c.d.nt w.s .xposed to low or aod.rat. qu.ntiti of a.b to. and smok.d a pack and a half of cigar.tt a day, Dr. Coop.r .t.t.d th.t the ri.k incre ed ten times the odd. for a non.moking, non.xpo d p.r.on. Dr. Coop.r al.o rt.d that the incr d ri.k it .o body had low to aoderat. do.e. of asbestos 6 w.s negligible, not st.tistic.lly signific.nt over the nonsmoking, non.xposed person." But if a person h.d heavy .xposure to asbestos and h.d smoked for sixty pack years, the incr.ased risk over that of nonsmoking, nonexposed persons "would b. about fifty to .ixty ti.e. gre.ter." A .econd defense expert, Dr. Ep.t.in, concurred, viewing the d.cedent's condition as caus.d s o l l ~ by cigarette oking. On this r.cord, we cannot say that no r.a.onable basis existed for determining the contribution of cigarette smoking to the cancer suffered by dec.dent. Indeed, the jury's attribution of c.use to cigarette smoking appears to fallon the moderate .ide. Moreov.r, we note th.t counsel for pl.intiff conceded that if we rem.nd for trial on liability, the defense will be permitted to rai.e the i ue of cigarette smoking a. evidence of the d.c.d.nt'. n.gligence. In th.t ca , apportionment ot dam.g.. would likely rest on the .xpert evidence .dduced to a ign cau.ation of the disease. w. cannot say that the .vidence of record would be inadequate to .ub.it to a jury. In sua, we conclud. that the evidence wa. sufficient to di.tinqui.h this ca.e from Martin II, so that the holding ot the state .upr ... court i. not controllinq h.r Con.equently, on the proration i ue we will affirm the order of the di.trict court ba.ed on the jury'. an.wer. to interrogatori 7 There are, however, two other aatt.rs w. must address. As not.d earli.r, the district court rul.d that the Pennsylvania Uniform Contribution Among Tort-feasors Act required that judqment be entered in favor of the non-settling def.ndants. According to .tate ease law in effect when the district court acted, no further suas were payable by the non-settling defendants to plaintiff if she r.ceiv.d aore through s.ttlement than the amount awarded by a jury. After the district court entered its order, the state supreme court reversed its previous decisions and held that a prorata release by one defendant works only a proportionate r.l of non-settling d.fendants. Charles v. Giant Eagle Mtts., 513 Pal 474, 476, 522 A.2d 1, 2 (1987). If the amount r.ceived from the s.ttling defendant is aore than a jury later determin.s i. du., the plaintiff may r.tain the excess. Only a prorata share of the settl ent, not the actual amount paid, may be d.duct.d fro. the jury v.rdict. In the case at hand, therefore, the jury award must be reduced only by Turner Newall's prorata ahare of liability, not by the $95,000 s.ttlement aaount. Cons.qu.ntly, in vi.w of the reviaion of atate law, the judqa.nt for defendanta auat be vacated. It reaains to be d.terained which, if any, of the r.aaining d.fendants are liable to plaintiff. Only after that finding will it b. possible to decide if the $85,6000 award is to be aolded, .nd if so, to what .xtent. 8 Whether delay da.a9's are due under Pennsylvania Rule of civil Proc.dur. 238 aust alao await a rulinq on liability. Ia& Craig y. Mage. Memorial Rehabilitation Center, 512 Pat 60, S15 A.2d 1350 (1986) (each example of d.lay damaq.s muat be taken up at a a.parat. h.arin;). Accordingly, the judgm.nt in favor of d.fendants is vacated and the caa. will b. remanded for a determination of . liability. Th. findinq of the plaintiff" dama9'. in the amount of $85,600 will b. affirmed. TO THE CLERK: Please file the foreqoin; opinion. 9
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