Albert Whatley, Cross-Appellee v. Armstrong World Industries, Inc., Raymark Industries, Inc., Cross-Appellant

Before REAVLEY, JOHNSON duced to represent 90.01% Raymark’s JONES, Judges. 9.09% responsibility. Whatley filed this appeal contending that REAVLEY, Circuit Judge: there is insufficient evidence to support the Albert Whatley brought this lia- percentage of causation allocated by the bility action to trial injuries arising jury to the settling defendants. Raymark from his exposure to the responds that there is sufficient evidence in of Raymark Industries’ predecessor, support of the contributory causation by Raybestos-Manhattan. found in the settling or, defendants in the alterna- Whatley’s favor but he contends the jury’s tive, if the evidence is insufficient toas findings of contributory 90.01% causation settling defendants it is also insufficient as ten defendants is without suffi- Raymark. presents also cient Raymark’s evidence. cross-appeal cross-appeal challenging the award of fu- challenges the award for future medical ture medical expenses. expenses. We affirm part but modify the recovery against Raymark. II. DISCUSSION I. FACTS Comparative A. Causation Settling Albert Whatley was Defendants employed for over years thirty as chipper at an Alabama In Duncan v. Co., Cessna Aircraft shipyard. Whatley’s work, smoothing the S.W.2d (Tex.1984), Supreme Texas interrogatories order, answers pretrial system established wit- counsel and as statements well in strict applied such admissions nesses, judicial are system Under liability cases.1 Whatley re- Whatley. upon binding among all—in are responsibility apportions complaint in his settling allegations defendants, that sponds non-settling cluding made acts defendants the claiming plaintiff that defendants, the and —whose harm his caused plain the that to cause combined defective and non-settling defend pleadings The inconsistent injuries. constitute tiffs recovery pleadings plaintiffs Liberal binding. the liability and not are ants’ such percentage the total as methods favored are joinder be reduced to are flexible and settling defendants. judicial ad- the fair to and assigned efficient share promoting of non-settling defendant Miller, Wright & A. 429. See, at 5 C. Id. ministration. settling de of 1282, the establish must Procedure §§ Practice and Federal Dun to benefit Miller, in order M. fendants A. Wright & C. (1969); 7 1283 causation. comparative of system ’s can Procedure and ‍​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​​‌​​‌​‌‌‌‌‌​‌​‌‌‍Kane, Practice Federal F.2d 765 v. Fibreboard Dartez (1986 Supp.1988). & §§ General Shipp v. Cir.1985); see (5th tech- are not Whatley’s pleadings Although (5th Cir. 418, 425 F.2d Corp., 750 Motors poli- same inconsistent, find the we nically burden the allocative placed 1985)(Duncan Continen- See here. applicable to be cies the defend on causation of Sherman, 439 v. York New Co. Ins. tal of ant). Cir.1971). 1294, 1298 non-set- the allows specifically Duncan Evidence Sufficiency of the 1. liability to the his to reduce tling defendant to failed Raymark that contends Whatley to evidence providing upon only plaintiff exposure of his evidence sufficient provide causation of percentage the of the the of containing products to the settling defendants. to the attributable entitled not is thus and settling defendants Ray- which to the statements only do Not award. damages in a reduction evidence real little provide points mark sufficiency review standard federal defendants, but liability of diversity cases. in applies evidence of the a upon which evidence they provide in evidence all review must court This or extent percentage determine could ver- to the favorable light most To by Duncan. required liability as unless verdict affirm must dict and on conclusive Whatley’s pleadings make over- strongly and “so points evidence Duncan render would issue that party one in favor whelmingly decline We meaningless. quirement could men reasonable believes Court total- to the and look view Raymark’s adopt contrary [conclusion].” a at not arrive conclu- reaching our ity of the 365, 374 Shipman, Boeing Co. sions.2 Cir.1969). in Duncan Supreme The Texas ar matter, Raymark an initial As sup- required the evidence quantify not admissions” “judicial 'Whatley’s gues contributory causation. finding of port proof of sufficient more provide decisions Fifth decision That Spe settling defendants. ten liability of all however, refer wake, its state contends cifically, establishing as that burden defendant’s complaint, Whatley in made ments concerning the Whatley’s statements com- statutory on contribution law 1. Texas evidentiary best are settling defendants Tex. See amended. been has parative conclusive. admissions, not are which 33.001, 33.012 §§ Ann. & Rem.Code Civ.Prac. kept be are to issues upon distinct pleadings however, suit, This Supp.1988). (Vernon 1064(2) § Evidence Wigmore, separate. date thе effective prior to commenced incongruous 1972). would It (Chadburn rev. Duncan § 9.001. Id. at present statutes. defendants, plaintiff possible if, all by joining applicable. thus are case law attendant evading the means with provided defendant responsibility. minimal all but liability. Duncan, See 434; S.W.2d at 1981), Dec. uncontradicted testimony of Dartez, 765 F.2d at 474. light of this former co-workers that decedent-plaintiff language and in the absence of language in had worked with products, defendant’s support of a different burden under Dun- that use of created asbestos can, we look to the burdеn of dust which all the inhaled, workers provid- imposed has been on litigants in other as- ed sufficient evidence to support the jury’s product bestos cases determine whether conclusion had exposed been sufficient evidence of liability for contrib- defendant’s Similarly, al- utory provided causation was in this case. though prove unable with specificity Issues insufficiency of the that he came into contact with the defend- to causation require ants’ products, consideration of plaintiff in Jackson v. nature ‍​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​​‌​​‌​‌‌‌‌‌​‌​‌‌‍product of the and extent of thе Johns-Manville Sales 727 F.2d 506 plaintiffs exposure. (5th Gideon v. Cir.1984) Johns- provided sufficient circum- Manville Sales Corp., 1129, F.2d 1143 stantial evidence of causation (5th Cir.1985). A survey of Fifth verdict. The evidence showed that challenges to the sufficiency of the evi products defendants’ were ordered for use dence in litigation asbestos reveals a vary on a number of ship hulls on which the ing requirement of proof. In Gideon, plaintiff evi worked and co-workers testified dence exposure, challenged as insuffi that they worked products with the under by. cient a non-settling defendant, consist very dusty circumstances. Id. at 523. Fi- ent of plaintiff’s testimony that he nally, in Halphen v. Johns-Manville Sales worked around the defendant’s products Corp., 737 (5th F.2d 462 Cir.1984), the years. There was no testimony or court rejected an insufficiency of the evi- evidence, however, on plaintiff’s dence challenge to jury’s finding that the contact products with the or any dust cre products defendant’s played a substantial ated from their use. Id. at 1144. The part in the plaintiff's illness and death. court held that the provided evidence insuf plaintiff The suffered from a rare cancer ficient оf causation. In Martin v. linked to exposure. asbestos The evidence American Petrofina, Inc., 250, 779 F.2d showed that plaintiff’s employer used the (5th 251-52 Cir.1985),the court held suffi products defendant's during the relevant cient evidence was in support offered period time and that it likely that the the jury’s finding that, “more probably plaintiff had exposed been prod- those not,” the plaintiff been exposed had ucts. Id. at 466. products. defendant’s The The presented in support of could not remember working with the de Whatley’s exposure to products of the product fendant’s job removing insu settling defendants is not dissimilar to that lation. Evidence was provided, however, presented in other asbestos cases. The from a supply officer who testified that the testimony insulators, Benny Gill and products defendant’s were used by the Cook, Donald who worked for Whatley’s plaintiff’s employer during the relevant employer provided the bulk of the evidence years and from insulators who testified in support of the settling defendants’ liabil- that they had used the prod defendant’s ity. Both insulators were identified as co- ucts. The plaintiff in Dartez v. Fibreboard by workers Whatley. parties stip- also Corp., 765 Cir.1985)was ulated products what were manufactured found to have offered insufficient evidence by nine of the defendants and the asbestos of his exposure and of the nature of the content of all but two of products. those product. defendant’s The identification of product defendant’s by made Benny a co Gill products identified by made worker and the evidence showed the prod nine the settling defendants uct to have a low asbestos fiber emittance “used on all of the ships.” Gill, who had and plaintiff’s exрosure to be (16 short worked as an insulator for Whatley’s em- weeks). In Migues v. Fibreboard ployer since gave summary descrip- Corp., 662 Cir. Unit A tions of the appearance and use of the parties product. burgh’s unibestos he testified Cook Donald ama- of 6.5% product content stipulated a Whatley for jobs as same on the worked year cite. of each out months six approximately pro- Cook ’70s. 1950s, ’60s and in- Industries, maker during the Eagle-Picher Ray- use of testimony on lengthy testified vided Gill cement. stallation (manufac- cloth gave a asbestos product, shiрs and mark’s used product Raybes- predecessor, Raymark’s Cook of its use. description tured one sentence cre- dusty conditions Manhattan), the product was tos very little testified Whatley’s expo- product, Whatley. ated around used that was used but identi- also Cook conditions. those content product sure stipulated parties defend- of six fibers. fied chrysotile and 12% 8.8% co- Whatley’s used ants Caryt- makers Corporation, Celotex workers. provided covering. Gill pipe emp block his an- testimony Whatley’s trial identi- Cook product. on this he show interrоgatories swers testified packaging product fied the asbes- using tradesmen alongside covering, worked pipe mostly products, cloth, including tos-containing products stipu- parties ships. The the used on were gave He cement, block. and covering, pipe to asbes- of 7% 6% product content a lated nature, use, and on the testimony extensive fiber. tos ships, on the cloth asbestos of prevalence cloth. asbestos Porter, of maker H.K. created was dust asbestos that said and asbestos of a “bunch” that Gill testified as well as products asbestos of forms all and Porter H.K. by both made cloth cloth. and that ships the on used was Raybestos offered specific The between to differentiate hard often it was settling defendant each liability of the of manufacturers. the of products the follows: was name the see not he did that testified Cook of makers Fiberglas, Raybestos Owens-Coming other any manufacturer of testi- covering. Gill shipyard. pipe the and used Kaylo block cloth asbestos on ships. on the used Porter was H.K. product as to the stipulation that fied parties’ The ex- and dusty bloсk the content. described a fiber He include not awith block the cut workmen how plained cover- pipe Ruberoid GAF, successor testi- Cook installation. before handsaw that testified Gill of calsilite. ing, maker though little use some was there that fied He ships. on the used was product the around. was Whatley when blocks the of pipe the of size and the color described of content product stipulated a parties The using remember not could Cook covering. fiber. asbestos chrysotile amacite 15% the stipulated parties The product. the of makers Corporation, Fibreboard asbestos. of 13.5% content product de- covering. Gill pipe and block Pabco No. of maker Engineering, Combustion the on used were products the how scribed product the testified Gill 12 block. like. looked products the and ships what the He described ships. used was used were the verified Cook and the block capacity heat color prod- stipulated parties ships. The on Cook container. product recognized fiber. 15% of 12% content uct product. using the remember not could suc- Corporation, Corning Pittsburgh content product stipulated parties The un- Industries, maker to Uranco cessor asbestos. 4.5% covering. Gill pipe block ibestos Owens-Illinois, No evidence—in Inc. not but could unibestos the use called otherwise testimony, stipulation, form described He the manufacturer. recall manufacturer of this the—on prone hard crusted covering as pipe jury. offered sawed. after splinters off giving Armatemp cement. maker Armstrong, very was used unibestos testified Cook on used product Gill testified of Pitts- packaging He identified little. ships. He described hоw the product these three defendants were producing

was used without adding details of its na- causes of Whatley’s injuries. ture or characteristics. Cook could not re- The evidence insufficient, how member using product. The parties’ ever, to establish the liability of the last stipulation provided the asbestos content two settling defendants, Owens-Illinois and type and fiber as unknown. Armstrong. Owens-Illinois was not men tioned at trial. No evidence was submitted contributory causa to the jury in support of this defendant’s tion of settling defendants Owens-Corning liability. As was done with two of the Fiberglas, Corporation, Fibreboard Pitts settling defendants, Owens-Illinois should burgh Corning Corporation, Eagle-Picher have been excluded from verdict Industries, and Corporation Celotex is sup form for lack proof. only ported by sufficient evidence. Donald in support of Armstrong’s liability was Cook using, recalls albeit varying de Gill’s testimony in which he stated grees, all five of these Armatemp cement was used on ships defendants. Both Cook’s and Whatley’s and described its use provide hard, testimony emphasized the relative frequen smooth finish. The jury received no evi cy with which the two mеn worked togeth dence of the fiber content cement, er. Gilltestified on the use shipyard at the whether the cement was dusty, or whether of all but Celotex The asbestos aspects of the product or its use content of each was also stipulated and likely made it that asbestos would be in presented to the jury. The proof provided haled those working on ships. against these five defendants is commensu jury’s finding of contributory causation as rate with that deemed sufficient in other to Owens-Illinois and Armstrong is with cases. The jury’s findings are affirmed as out support оf sufficient evidence of to these five defendants. exposure. Nor can saywe that there was insuffi- Raymark contends that a rejection cient in support evidence jury’s find- of the sufficiency of the evidence ing of liability of and contributory causa- settling defendant necessitates the same by tion settling defendants H.K. Port- conclusion on the presented er, GAF, and Combustion Engineering. against it. That does not follow. Whatley Donald Cook was unable to recall the use provided far more evidence Ray- toward of these defendants’ at ship- mark’s liability than provided was toward yard. Benny Gill, however, attested to the liability of any other manufacturer. their use and the evidence established that Whatley, Gill, and Cook testified on the Gill worked with Whatley. The use, was frequency use, characteristics, entitled to make the inference that Whatley fiber Raybestos content of asbestos cloth. exposed by used Gill in his The evidence is clearly sufficient to support job as an insulator. also had the jury’s finding of Raymark’s liability. before it stipulated asbestos content of products made Reallocation GAF and оf Damages Combustion Engineering. Although Awarded Jury no fiber content stipulated for H.K. Porter’s asbestos Whatley provided sufficient evidence cloth, both Gill and Whatley provided upon which the jury could find that he lengthy testimony on the frequent use of injuries sustained and that Raymark was a ‍​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​​‌​​‌​‌‌‌‌‌​‌​‌‌‍cloth, the frequent practice of cause of injuries. those Duncan, Under tearing cloth, great amounts of Raymark was then allowed to “reduce” its it dust created when torn. In addition, Gill liability to Whatley by the percentage of testified that a “bunch” of H.K. Porter’s causation allocatеd the jury to the set- asbestos cloth was used ships. tling tortfeasors. 665 429-30; S.W.2d There was sufficient to support Dartez, see 765 474; F.2d at Acord v. Gen- findings eral Motors Corp., 111, 669 S.W.2d (non-settling (Tex.1984); Equipment could indeed stand on B's de O'Neal v. Sherck Co., 559, (Tex.App.-Texar fendant) liability damages 751 S.W.2d for the less the 1988, writ). plaintiff's (settling defendant).3 kana burden 60% attributed to D increased; joint liability is not placed the allocative burden is This is what and several Shipp hypothetical, again, on the defendant. v. General means. In the second Corp., 418, Motors 750 F.2d Cir. the allocation between defend 1985); plaintiff; seе Moore v. Johns-Manville Sales ants would be immaterial to 1061, (5th Cir.1986). jointly severally 781 F.2d defendants are liable damages. Despite joint for full remonstration, the dissent's Duncan established and several lia today bility subject the result reached is of each tortfeasor law; jury's faithful to the Texas the result does assessment of simply may not reallocate causation but rein which limit or all de Duncan, 434; part Raymark's liability fendants. 665 S.W.2d at see states that Dartez, (the controlling failed to reduce. 765 F.2d at 474 principles contributory of Duncan are cau joint liability). sation and and sеveral Sufficiency B. of the Evidence for liability, Raymark order to reduce its Damages Award of Future Medical required provide proof cross-appeal, Raymark In its claims that Raymark provided defendants. in presented no evidence was to show that finding sufficient evidence to Whatley will need future medical care or contributory causation of defend damages that the awarded for such were Armstrong. Ray- ants Owens-Illinois and necessary. reasonable or A must liability Whatley Whatley's mark's probability show a reasonable that medical recovery Raymark, thus, should not expenses will be incurred in the future. by any be reduced allocation to those two Mfg. Co., companies. Raymark responsible Keeler v. Richards 817 F.2d (5th Cir.1987). award, represents Under Texas state 27.27%of the total which law, expenses percentage such must be reasonable and a reduction for the of causation necessary. eight remaining settling Pan Am. Ins. Co. v. Hi-Plains attributed to the Haulers, Inc., defendants. 163 Tex. 350 S.W.2d (1961). inquiry Our is whether the that, despite Ray- The dissent insists points strongly so and overwhelm- mark's failure to sustain its burden of ingly Raymark's in favor of contention that proving the causation of defend- jury a reasonable could not have reached ants, may plain- the court not increase the opposing Boeing, an verdict. 411 F.2d at recovery tiff's above 9.09% of the total 374-75. damages usurping without func- tion. This view confuses defendant's liabil- granted Raymark's The district court ity ability original judgment with defendant's motion for notwithstand- plaintiff's recovery plain- ing jury's reduce tiff's settlement with other tortfeasors. because of the verdict and struck the award expenses $150,000. for future medical Raymark plain- Following entry judgment, has bеen found liable for of that injuries. Whatley responded tiff's Had there been other non- with his own motion for settling defendants, judgment Evidently an allocation of causa- or new trial. reconsid- ering, granted Whatley's tion attributed tling to the non-set- the district court only upon judgment defendants would bear con- motion and entered a reformed them; $120,000 expenses. tribution between each of them of for future medical plain- would be liable to the free-from-fault damages. hypo- of his claim for future tiff for his full In the first damages, Whatley put by dissent, (plaintif~ medical offered the tes- thetical A Legislature Supp.1988). cases,however, 3. TheTexas alteredthe court'srule In toxictort each jointly severally joint liable defendantremains liable. Id. at of casesfiledon or after Civ.Prac.& Rem.Code and several for strict September2, 33.013(c)(3). § 1987. Tex. Ann.,Chap. (Vernon timony of Gary Dr. Friedman, specialist estimate. The district court did not abuse in pulmonary diseases. Dr. Friedman testi- its discretion in its resolution of this issue. fied percent that 95 of all lung cancer Keeler v. Co., Richards Mfg. patients die years within five diagnosis. Cir.1987). We affirm the award This testimony was uncontradicted. Al- $120,000 for future medical expenses. though Whatley had recovered from his modify We to award What- prior surgery, we cannot say the jury had ley the recovery of 27.27%instead of 9.09% upon basis which to find reasonable of his damages against Raymark. The medical probability that Whatley would re- cause is remanded entry of the appro- quire future medical care for a recurrence priate judgment. of his lung cancer. Raymark further challenges Dr. Fried- EDITH JONES, H. Judge, man’s testimony on the cost of any future dissenting: medical care as insufficient to support аn award of damages. When asked What- With due respect to my colleagues, I ley’s counsel about expenses for termi- dissent on one point in this case. In allo nal care of victims, cancer Dr. Friedman cating the liability shares of two settling gave opinion $80,000 between and co-defendants back to Raymark, thus rais $120,000 would required be for care aat ing its proportionate liability to the plain nationally known hospital. Houston tiff from to 27%, 9% about we have invaded “necessary” prong of the Texas standard province jury. Duncan v. Cess for medical expenses is satisfied by our na Co., 665 (Tex. S.W.2d 414 Aircraft determination that there was sufficient evi- 1984), bold and far-reaching was, as it dence aof reasonable medical probability not ordain this result, and I know of no that future care would required. Chal- other principle justifies it. lenging the “reasonableness” of this esti- Despite Whatley’s efforts, best ju- mate of future medical expenses, however, rors obviously disbelieved his Raymark contention contends that prices charged that Raymark, lone, de- a renowned Houston hospital are not trial, fendant at wаs somehow more representative liable hospitals Alabama than other asbestos manufacturers Mr. Whatley will be more likely to whose Whatley was exposed. attend. As result, the jury found equally Although Whatley may not provid have responsible with ten other settling asbestos aed wealth of in support of an manufacturers for causing Whatley’s lung amount for his future medical expenses, he cancer. It assessed each of them with provided evidence sufficient for affirmance approximately fault, and 9% on appeal. See, e.g., Simeon T.v. Smith & rendered accordingly. Sons, Inc., 852 1427 Cir. 1988)(per curiаm) appeal, On (testimony we of have doctor correctly found in- plaintiff had a fifty-fifty sufficient chance of evidence to needing hold that Owens-Illi- another operation and nois cost Armstrong would be Products exposed What- $10,000 about though ley even he harmful claimed not Thus, fibers. as to to be expert an costs; on nine testimony manufacturers, including Raymark, sufficient to support $10,000); remittitur to there was sufficient evidence to connect City Pasadena Freeman, v. their of S.W.2d plaintiff’s the injury. The 590, 595-96 (Tex.Ct.App. question then [14th — Houston becomes how treat the 1987), аff'd, Dist] (Tex. S.W.2d jury verdict with two fewer manufacturers 1988) (award of future medical costs involved. possibilities Three First, exist. supported by testimony of treating doctor we could remand for a new Second, trial. gave who an educated guess on cost and we could assume that the jury, having duration of future treatment). $120,- clearly determined that Raymark was no 000 award entered the district court more responsible proportionately for What- reflects the high side of Dr. ley’s Friedman’s cancer than other manufacturer, non-settling against the two the some manner of rathеr thanVuth V9th should bear I it. What non-arbi- appellants? doubt we could award 11% liability, and Third, purport- employ? The Raymark. could we rela- trary formula verdict held, in have apply liability, potential those ‍​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​​‌​​‌​‌‌‌‌‌​‌​‌‌‍cases which some ing to shares of when tive non-settling Duncan, that a of the wake excluded from the tortfeasors have been establishing of the burden bears consideration, defendant might change dramati- settling tort- causation of percent the trial. cally. We would have to order a new feasors, majority’s the could reach we hypothet This cаse from the first differs sult here. second, ical, only in one from the but not it, result is a majority’s the As I see following Duncan have respect: cases in the masquerading wolf fact-bound has held that defendant the line of clothing the Duncan sheep’s of regarding the the burden of by show- I would demonstrate cases. settling Shipp of tortfeasors. General related, post-Dww- closely plausible ing two Cir. Motors involving settling tort- scenarios can 1985). dispositive, is not That difference First, suppose A sued defendants feasors. however, province the it is still because According D. B, with D and settled C and percent of fact to determine the trier Duncan, point B and C are entitled assigned among de of causation share tortfeasor, D as the absent finger settling tortfeasors. fendants and allocating responsible for jury is and the in Supreme The Texas Duncan among comparative causation the share the allocation of B characterized exposure of The maximum parties. as a qualification causation without contributory negligence, will C, absent percentage of D’s issue: by the extent be reduced Supрose the to the tort.

contribution multiple defendant cases holdWe D, liable, liable B C finds 30% 10% recovery other than grounds which settler, Suppose further liable. 60% established, the negligence are non-set- legally appeal, C is exonerated. on plain- tling defendants’ obviously cannot continue court appellate by the reduced recovery shall be tiff's tort, but B liable for to hold 10% assigned to percent share judg- simply add C’s should 30% tortfeasor trier against B? Such previously entered ment fact. majority result, analogous to that of the added). (emphasis at 429 665 S.W.2d sense, here, surely not make because would compa- case, the entire calculus In this jury might have speculate how a we cannot changed by elimi- only has been compared if rative causation negligence B’s viewed Unpleas- D than the tortfeasors. nating rather of the absent with that involved, parties C. participating defendant for the personally might as it ant among only the three is the of causation a retrial allocation conclude that I must only be re- could participating tortfeasors factual determinаtion way to revise new trier of fact. done before This situa- causation. Raymark’s percent particular- if some tion is no different that in Likewise, possibility consider had of evidence entered ly piece offensive case, had failed defendants present tortfeasor, and we regard to one in the trial eight impleaded the settle, they both a new trial devoid required to order were settling asbestos manufacturers. other majority’s influence. infectious of its jury, further that unlike Suppose fact-finding function usurpation of cau- one, shares аwarded different had clear becomes comparative causation potential defend- among the eleven sation consequences of their re-formu- light of the If had reversed ants. we Ray- jury found judgment. lated insufficient evidence because responsible for What- more tortfeasors, mark was we would as to two any other lung ley’s cancer percentages apply license have the Ray- held manufacturer; majority have exonerated tortfeasors applicable to the responsible, mark 27% 73% by eight

residual causation other tort-

feasors. posture unusual, of this case is be- plaintiff,

cause there one one non-set- defendant,

tling virtually identical is- liability pertaining

sues of Raymark.

tortfeasors and almost postulated Duncan-type case,

majority justify expedient could not

avoiding creating new trial their own

allocation of causation. That unusual, however, ‍​​​​​​​​‌‌‌​‌​​‌‌‌​‌​​‌​‌‌​‌‌‌‌​​‌​​‌​‌‌‌‌‌​‌​‌‌‍pre- case is does not being incorrectly decided,

vent it from as I

believe it has I been. would reverse and

remand for a new trial. EVANS, Plaintiff-Appellant

Robert R.

Cross-Appellee, DALLAS, Defendant-Appellee

CITY OF

Cross-Appellant.

No. 87-1740.

United Appeals, States Court of

Fifth Circuit.

Dec.

Case Details

Case Name: Albert Whatley, Cross-Appellee v. Armstrong World Industries, Inc., Raymark Industries, Inc., Cross-Appellant

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 24, 1989

Citation: 861 F.2d 837

Docket Number: 87-1710

Court Abbreviation: 5th Cir.