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NOT fOR puBLICATION

UNITED STATES COURT OF APPEALS


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.
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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
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(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
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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."
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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
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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
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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.
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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
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liability. Th. findinq of the plaintiff" dama9'. in the amount
of $85,600 will b. affirmed.
TO THE CLERK:
Please file the foreqoin; opinion.
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