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JOSEPH EDWARD MARTIN v. JOHNS-MANVILLE CORPORATION (06/28/85)

decided: June 28, 1985.

JOSEPH EDWARD MARTIN, APPELLEE
v.
JOHNS-MANVILLE CORPORATION, PITTSBURGH CORNING CORPORATION, OWENS-CORNING FIBERGLAS CORPORATION, EAGLE-PICHER INDUSTRIES, INC., FORTY-EIGHT INSULATION, INC., CELOTEX CORPORATION, KEENE CORPORATION, UNARCO INDUSTRIES, INC., COMBUSTION ENGINEERING, INC. AND RAYBESTOS-MANHATTAN, INC. V. INDUSTRIAL FURNACE SUPPLIES, INC. V. OWENS-ILLINOIS, INC. APPEAL OF OWENS-CORNING FIBERGLAS CORPORATION, EAGLE-PICHER INDUSTRIES, INC., FORTY-EIGHT INSULATION, INC., CELOTEX CORPORATION, COMBUSTION ENGINEERING, INC. AND OWENS-ILLINOIS, INC.



COUNSEL

Patrick R. Riley, Egler, Anstandig, Garrett & Riley, Pittsburgh, for appellants.

Charles Kirshner, Pittsburgh, for Eagle-Picher Industries, Inc.

James C. Tosh, Beaver, for Forty-eight Insulation, Inc.

Richard G. Lewis and Kathleen S. McAllister, Pittsburgh, for Celotex Corp.

William R. Caroselli, Pittsburgh, for Joseph Edward Martin.

Gerald C. Paris, Pittsburgh, for Pittsburgh Corning Corp.

Nix, C.j., and Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., files a concurring opinion, in which Papadakos, J., joins. Nix, C.j., and Zappala, J., concur in the result. Larsen, J., did not participate in the consideration or decision of this case.

Author: Hutchinson

[ 508 Pa. Page 161]

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

Appellants,*fn1 manufacturers of products containing asbestos, appeal by allowance Superior Court's order reversing an order of the Court of Common Pleas of Allegheny County. Common Pleas had denied a motion for a new trial by appellee, an insulation worker, who claimed he was tortiously injured as a result of exposure to asbestos while installing appellants' products for his own employer. Superior Court remanded to Common Pleas for a new trial limited to damages. 322 Pa. Super. 348, 469 A.2d 655. In so doing, it held the trial judge had erred with respect to damages in two instances, viz.: (1) in excluding the testimony of a doctor that there was a "possibility" appellee had suffered from cancer as a result of his exposure; and (2) in determining the evidence of appellants' outrageous conduct was insufficient to submit the issue of punitive damages to the jury.*fn2

On this record we reverse Superior Court and, therefore, affirm the Court of Common Pleas of Allegheny County. On the exclusion of appellee's medical evidence Superior Court failed to see a subtle but important distinction between

[ 508 Pa. Page 162]

    evidence sufficiently definite to show present damage and evidence relevant to show a substantial risk of additional future damage. On punitive damages this record does not demonstrate the outrageous conduct necessary to permit a jury to impose them.

This products liability action was initiated by plaintiff-appellee Joseph Edward Martin who filed a complaint in trespass on August 16, 1978*fn3 seeking compensatory and punitive damages for asbestosis and related diseases which he claimed he developed as a result of working with products containing asbestos manufactured by defendant-appellants.*fn4

The jury returned a verdict in Martin's favor, awarding him $67,000 in compensatory damages. As stated, the trial court had determined that the evidence Martin had presented was insufficient to establish his claim for punitive damages and, accordingly, refused to submit that claim to the jury. It subsequently denied both Martin's initial motion for a new trial and his supplemental motion based on after-discovered evidence. Martin appealed to Superior Court on several grounds. That court reversed and remanded the case to Common Pleas for a new trial limited to damages holding, as stated, that the trial judge erred both in excluding expert testimony offered to establish that Martin's exposure to asbestos significantly increased the risk of his developing lung cancer and in refusing to submit Martin's punitive damages claim to the jury.

In appealing Superior Court's rulings the products manufacturers argue that: (1) the trial judge properly excluded proposed expert testimony regarding the likelihood of Martin's contracting lung cancer; (2) assuming, arguendo, that such evidence was improperly excluded, a new trial should

[ 508 Pa. Page 163]

    not be limited to compensatory damages issues but should include relitigation of the liability issues; (3) punitive damages should be unavailable to plaintiffs who seek compensation for injuries allegedly attributable to exposure to products containing asbestos on a "strict" liability theory based on Restatement 402A principles; and (4) in any case, the trial judge correctly ruled Martin failed to present sufficient evidence to support his punitive damages claim. In addition, Celotex Corporation contends that this Court may not consider information contained in appellee's brief which was not presented either at trial or to Superior Court, on the issue of whether Celotex may be liable for any punitive damages imposed because of the conduct of its predecessor, the Philip Carey Manufacturing Company.

At the outset we are mindful of the circumscribed scope of appellate review applicable to a trial court's order granting or denying a new trial. As we have frequently stated, the grant or denial of a new trial will not be reversed on appeal absent either an error of law which controlled the outcome of the case, Anzelone v. Jesperson, 436 Pa. 28, 30, 258 A.2d 510, 510 (1969); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967), or a palpable abuse of discretion where the ruling turns on the weight of the evidence, Lobozzo v. Adam Eidemiller, Inc., 437 Pa. 360, 367-68, 263 A.2d 432, 436 (1970). The issues presented here must be considered within that narrow scope of review.

Appellants first challenge Superior Court's determination that the trial judge improperly granted appellants' motion in limine to exclude any references to cancer. In response to the motion in limine appellee offered the proposed testimony and written report of Dr. Murray Sachs. The report, which had previously been furnished to the appellants, sets forth Dr. Sachs's diagnosis following his examination of appellee in 1978. The doctor concluded that appellee suffered from "chronic obstructive lung disease with asbestosis." He added that he could not exclude the possibility of bronchogenic carcinoma (lung cancer) particularly

[ 508 Pa. Page 164]

    in light of appellee's recent hempotysis (blood-spitting episode) and that appellee should be studied for this possibility. See Reproduced Record (hereafter "R.R.") at 11a-12a.

In response to questioning by the trial judge, appellee's attorney stated that:

I believe it will be Dr. Sachs's testimony that based on the exposure that [appellee] has had, based on the symptomatology [hemoptysis] that [appellee] has, that there may, in effect, be cancer which exists now, which is not detectable but he is most certainly at risk.

R.R. at 36a.

In sustaining appellants' motion, the trial court concluded that the above offer of proof was inadequate to establish appellee's claim that he risked developing bronchogenic carcinoma as a result of his exposure to asbestos. The court explained that appellee should have been prepared to offer evidence confirming the risk of cancer associated with asbestos exposure by statistical or epidemiological analyses of that risk. Common Pleas slip op. at 5, 8.

It is well-settled that a plaintiff in a personal injury action may introduce expert testimony to support a claim that he may suffer certain future harm as a result of a past injury. Boyle v. Pennsylvania Railroad Company, 403 Pa. 614, 618, 170 A.2d 865, 867 (1961); Walsh v. Brody, 220 Pa. Superior Ct. 293, 296, 286 A.2d 666, 668 (1971); Schwegel v. Goldberg, 209 Pa. Superior Ct. 280, 287, 228 A.2d 405, 409 (1967). It is likewise true that where the issue in question is one of prognosis, "a doctor cannot be required to express his opinion with the definiteness required in a causation question." Boyle v. ...


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