The opinion of the court was delivered by: DIAMOND
Plaintiff commenced this diversity action on October 29, 1981, against the defendant Auto Friction Corporation and others under the Pennsylvania Wrongful Death and Survival Acts to recover damages for the death of her husband from his exposure to asbestos dust and fibers emitted, inter alia, by brake linings sold to decedent's employer by the defendant Auto Friction Corporation.
A jury awarded damages of $292,509 against Auto Friction on May 10, 1985, and it then filed a motion for judgment N.O.V. or in the alternative for a new trial, which, along with plaintiff's motion for inclusion of delay damages, are presently before the court. For the following reasons, the defendant's motions will be denied and the plaintiff's motions granted.
Defendant's Motions for N.O.V. or New Trial
The only point in support of either of defendant's motions which requires discussion is point 4 in support of its motion for judgment N.O.V.
Defendant contends in point 4 that: "The plaintiff failed to produce competent testimony to establish that the Decedent's possible exposure to defendant's products was a substantial factor in bringing about Decedent's injuries and death."
The two main principles applicable to our consideration of defendant's motion for judgment N.O.V. are: (1) the court must view the evidence in the light most favorable to the party who secured the jury verdict, and (2) a jury verdict may not stand if it is based on mere speculation. Eastern Associated Coal v. Aetna Cas. & Sur. Co., 632 F.2d 1068, 1074 (3d Cir. 1980), cert. denied, 451 U.S. 986, 68 L. Ed. 2d 843, 101 S. Ct. 2320 (1981).
Specifically, plaintiff produced David Keith Parkinson, M.D. who first testified that, based on his examination of the medical records of the decedent (plaintiff's exhibits 1-6) it was his opinion that the decedent died of adenocarcinoma of the right lung. (Tr. 14-16).
In addition, a death certificate, plaintiff's exhibit 6, introduced under Rule 803(9) Fed.R.Evid. over defendant's objection, listed adenocarcinoma of the lung as the cause of decedent's death,
and decedent's hospital record, plaintiff's exhibits 1-5 supra, introduced without objection, provided independent evidence that plaintiff had, and was being treated for, adenocarcinoma of the lung.
Next, in response to a hypothetical question, Dr. Parkinson testified that in his opinion to a reasonable degree of medical certainty decedent was subjected to a substantial exposure to asbestos dust during his employment at Beck-Arnley, (Tr. 18-22) and that the grinding operation in the plant (i.e., grinding of new brake linings 98% of which were supplied by defendant Auto Friction) made a significant contribution to decedent's exposure there to asbestos dust. (Tr. 24).
Finally, the doctor was asked this question:
Doctor, on the basis of the facts that I have given you in the hypothetical, hypotheticals, since I've given you several facts at various times, on the basis of assuming those facts in evidence, as well as your knowledge and experience involving brake lining type activities, as well as your knowledge and experience with asbestos related disease questions, do you have an opinion to a reasonable degree of medical certainty as to whether Mr. Burton's ...