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Howell v. Celotex Corp.

filed: May 18, 1990.

JOSEPH D. HOWELL AND INGEBORG HOWELL, HIS WIFE, APPELLANTS
v.
THE CELOTEX CORPORATION, EAGLE PICHER INDUSTRIES, INC., KEENE CORPORATION, OWENS ILLINOIS, INC., GAF CORPORATION, FIBREBOARD CORPORATION, OWENS CORNING FIBERGLAS, GARLOCK, INC., RAYMARK INDUSTRIES, INC.



On Appeal from the United States District court for the Eastern District of Pennsylvania; D.C. Civil No. 86-6378.

Higginbotham, Chief Judge and Cowen and Nygaard, Circuit Judges.

Author: Nygaard

Opinion OF THE COURT

Nygaard, Circuit Judge.

The issue in this diversity action is whether appellant's pleural thickening amounts to a compensable injury under Pennsylvania law, entitling him to a jury charge mandating liability. The district court refused to decide the question as a matter of law and submitted the issue to the jury which rendered a verdict against appellant. Judgment was entered by the district court on September 7, 1989 in favor of appellees. We will affirm.

I.

In October, 1986, Joseph Howell filed an asbestos-related personal injury action against defendants Celotex Corporation ("Celotex"), Owens-Illinois, Inc. ("Owens-Illinois"), Pittsburgh-Corning Corporation ("Pittsburgh-Corning"), GAF Corporation ("GAF"), Keene Corporation ("Keene"), and Owens-Corning Fiberglas Corporation ("Owens-Corning"). This action proceeded to trial on the issues of medical causation and damages. At trial, appellees conceded appellant's asbestos-related pleural thickening, but contested its status as a compensable injury. Both sides produced experts who provided conflicting evidence on the "injurious" aspects of pleural thickening. The district court noted the appellees' concession that plaintiff had pleural thickening, but stated that the jury should determine whether pleural thickening was a compensable injury. Appellant objected, maintaining that pleural thickening constituted an injury and the jury need only assess damages.

The district court charged the jury as follows:

So, the first question you have to ask is: Has plaintiff, Joseph Howell, proved by a preponderance of the evidence that he is suffering from a disease or injury as a result of being exposed to asbestos? [It] is my understanding that there was a general agreement he suffered a pleural thickening as a result of his asbestos exposure.

Now, I heard one counsel say to you, and I don't recall specifically one way or the other, that all the doctors agreed that there was an impairment as a result of that pleural thickening. If that is your recollection, then I so instruct you that an impairment is an injury. . . . I recall one physician saying that he didn't classify pleural thickening as a disease or a disease-related injury. But that is up to you to decide. Consider all the evidence. . . . So, the issue is whether or not from all the evidence you have heard, has the plaintiff, as a result of his exposure to asbestos, is he suffering from an injury or a disease? You answer that yes or no. If you answer that no, that's the end of the case . . .

Plaintiffs renewed their arguments following the jury charge, maintaining that asbestos-related pleural thickening constituted an "injury" under Pennsylvania law. After the jury found no compensable injury and the district court entered judgment on May 8, 1989, plaintiffs moved for a new trial and judgment N.O.V. Both motions were denied on September 7, 1989 and this appeal followed.

II.

Plaintiffs raise one issue on appeal: whether asbestos-related pleural thickening constitutes a compensable injury under Pennsylvania law, entitling plaintiffs to a jury charge mandating liability. Our scope of review is plenary. See, e.g., Carter v. Rafferty, 826 F.2d 1249 (3d Cir. 1987), cert. denied, 484 U.S. 1011 , 108 S. Ct. 711, 98 L. Ed. 2d 661 (1988). In diversity cases we apply the substantive law of the state in which the district court sat. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Where that law has not been settled by the highest court of the state, we must predict the possible outcome of that court. Commission v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967). ...


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