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AMADER v. JOHNS-MANVILLE CORP.

July 1, 1982

Thomas A. AMADER, Jr. and Dorothy D. Amader, his wife
v.
JOHNS-MANVILLE CORPORATION, et al.



The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

Moving for partial summary judgment based upon offensive collateral estoppel, plaintiff asserts that prior jury findings that defendant, Pittsburgh-Corning's high temperature insulation product, "Unibestos", was defective when manufactured between 1962 and 1968 forecloses relitigation of that issue. Plaintiff also seeks to invoke collateral estoppel to prevent relitigation whether "Unibestos" was a substantial factor in producing the asbestos-related diseases from which he purportedly suffers. Recognizing the beneficial and salutory effects of collateral estoppel, Hardy v. Johns-Manville, 509 F. Supp. 1353, 1363 (E.D.Tex.1981), and in the exercise of our "broad discretion", Parklane Hosiery Co. v. Lane, 439 U.S. 322, 331, 99 S. Ct. 645, 651, 58 L. Ed. 2d 552 (1979), we grant plaintiff's motion pro tanto.

 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938), requires that federal courts apply the forum state's substantive law when adjudicating diversity cases. State collateral estoppel rules are substantive and within the Erie mandate. Public Service Mutual Insurance Co. v. Cohen, 616 F.2d 704, 707 (3d Cir. 1980); Provident Tradesmens 's Bank and Trust Co. v. Lumbermens Mutual Casualty Co., 411 F.2d 88, 92-95 (3d Cir. 1969). Cf., Aerojet-General Corporation v. Askew, 511 F.2d 710 (5th Cir.), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975) (applying federal res judicata principles where prior federal court judgment was rendered in case brought under diversity jurisdiction).

 To successfully invoke collateral estoppel in Pennsylvania, the movant must establish that:

 
1. the issue decided in the prior adjudication was identical with the one present in the later action,
 
2. there was a final judgment on the merits,
 
3. the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and
 
4. the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

 Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 573, 345 A.2d 664, 668 (1975); In re Estate of Ellis, 460 Pa. 281, 285-87, 333 A.2d 728, 730-31 (1975).

 Plaintiff, arguing that issue preclusion is warranted, points to two cases in which juries found "Unibestos" defective. See, Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 (1974) and Roesberg v. Johns-Manville Corp., No. 79-3016 (E.D.Pa. May 6, 1982) (jury specifically found that "Unibestos" was defective but returned a verdict in favor of Pittsburgh-Corning since plaintiff's claim was time-barred.)

 Defendant, countering, asserts that Pennsylvania has not jettisoned the requirement of mutuality where, as here, "successive litigation of identical issues by several plaintiffs is likely". The reason for this is that a "common defendant might successfully defend several actions, lose one and be subjected to a plea of collateral estoppel for the remaining cases". In re Estate of Ellis, 460 Pa. at 287 n.7, 33 A.2d at 731 n.7. Hence, Pennsylvania courts would, apparently, refuse to permit the offensive use of collateral estoppel where inconsistent results have been obtained against a common defendant embroiled in multiple suits. Defendant finally asserts that inconsistent verdicts have been rendered on the issue of whether "Unibestos" was defective; as such, it urges that we may not properly preclude litigation of that issue. See, Flynn v. Johns-Manville Corp., No. 88 (123) Case No. 23 CCP, Philadelphia (September Term 1978).

 The only case which has been fully and fairly litigated, for collateral estoppel purposes, is Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir. 1973), cert. denied, 419 U.S. 869, 95 S. Ct. 127, 42 L. Ed. 2d 107 (1974). *fn1" There, Pittsburgh-Corning, along with other defendants, was found liable to plaintiff on a theory of strict liability. Restatement of Torts (Second) ยง 402(A).

 Courts in the Eastern District of Texas, the situs of the Borel trial, have not hesitated to apply offensive collateral estoppel against those defendants who actually litigated Borel. See, Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353, 1360-63 (E.D.Tex.1981) *fn2" ; Flatt v. Johns-Manville Sales Corp., 488 F. Supp. 836, 841 (E.D.Tex.1980); Mooney v. Fibreboard Corp., 485 F. Supp. 242, 249 (E.D.Tex.1980). There is no ...


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