James Leroy Jackson v. Johns-Manville Sales Corporation and Raybestos-Manhattan, Inc.

houses unless it is from difference charity your heart.

just out JACKSON, Leroy James error, Plaintiff-Appellee, ac clear we Discerning in them no findings. Fed.R. cept factual the court’s 52(a). failed to show Hackett thus Civ.P. single SALES CORPORA- satisfaction JOHNS-MANVILLE

to the district court’s Inc., instance, of admit one instance Raybestos-Manhattan, other than TION and error, rates result the SAHA ted Defendants-Appellants. landlords.4 to non-black preference ed No. 82-4288. SAHA as well Evidence actually points himself introduced Hackett Appeals, United States Court Hackett’s Exhibit opposite direction. in the Fifth Circuit. inter-office a SAHA which embodied indi- of December memorandum Jan. received more $5 Hackett then cated that units did for one-bedroom than Colebank Ex- for two-bedroom units. more $25 Hackett’s section 15 also showed

hibit that other the amounts

rents well exceeded program received

participants throughout size San comparable

units documents, Ex- Another set of

Antonio. DD, as of December presented data

hibit computer print-out. of a

1983 in the form had that the SAHA

Those data reflected charge per more Hackett to

permitted $13 than for one-bedroom

month Colebank two-bedrooms,

units, and $10 more $40 aside, Z Exhibit for three-bedrooms.

more plenitude had it a

the district court before ground its ultimate

of evidence on which Hackett had failed to show

conclusion that

discrimination.

III. other than the inadmis-

Because evidence undergirded the sufficiently Z Exhibit

sible discrimination, finding no court’s

district in its refusal find no abuse of discretion

we grant a new trial.

AFFIRMED. applied section 8 landlords explicit findings schedule to all Although rent the absence caution, barracks-style the Carson believe that dis- units in we also owned counsels who frequency discerned little substance in Hackett’s trict court He also stated that Homes area. disparate treatment. In find- evidence of responded other ing more numerous inspections discrimination, implicitly the court re- no lodged and that his complaints Hackett jected contentions that the SAHA ha- Hackett’s against The court thus pressed him. tenants by inspecting his units more fre- him rassed quently present- explanation that it accepted the SAHA’s dwellings other landlords’ and that than 3 schedule with the December Hackett ed placed ceiling letter from Bass December 3 the only inspected not out of racial his units and often charge. Hackett could on the rents that griev- response against to his him but in animus ceiling provided guide- that the testified Fauser presented. those that others ances and than inflexible limits and that the rather lines Rubin, Judge, B. Circuit filed

Alvin

concurring opinion.

Clark, Judge, Chief dissented filed Gee, Garza, opinion in which Politz and Grady Jolly, Judges, joined.

E. Circuit Williams, Miss.,

Roy Pascagoula, C. Live- Wilson, ly Dorothy Chambers, M. J. Louis- ville, Holloman, III, Ky., H. John William Jackson, Reed, Miss., defendants-ap- N. for pellants. Pate, Mobile, Ala., Danny

Richard F. E. Jackson, Miss., Cupit, Motley, Ronald L. Barnwell, S.C., Miller, Arthur R. Harvard School, Mass., plain- Cambridge, Law for tiff-appellee. Steele, Tex.,

Joseph Arthur, R. Port for amicus curiae-Abestos Claimants in the State of Tex. Orleans, La.,

Adolph Levy, J. New Lawyers amicus curiae-The Ass’n Trial of America. Austin, Tex., Spivey,

Broadus A. ami- cus Spivey. curiae-Broadus A. CLARK, Judge, GEE, Before Chief RU- GARZA, REAVLEY, BIN, POLITZ, RAN- TATE, DALL, JOHNSON, GARWOOD, significant HIGGINBOTHAM, exposed quantities was JOLLY, DAVIS and dust. HILL, Judges.* Circuit leaving years seven Approximately after RANDALL, Judge: Circuit diagnosed having Ingalls, Jackson was case, diversity plain Mississippi In this asbestosis, progressive pul and incurable Jackson, shipyard a former tiff James L. by exposure to as monary disease caused worker, recovery puni actual and seeks asbestosis, As a result of the Jack bestos. against defendants Johns damages tive expectancy his life was reduced and son’s Raybestos Corporation, Manville Sales lung impaired. capacity significantly Manhattan, Inc., Compa Porter and H.K. Moreover, expo alleges Jackson his products, ny, of asbestos manufacturers markedly his sure to the asbestos increased by the allegedly caused defend injuries for contracting lung risk cancer and other dangers associ to warn ants’ failure 21, 1978, malignancies. On November prod to their asbestos exposure ated with parties in joined Jackson with several other discovery and a Following extensive ucts. filing in federal court a class action district trial, court lengthy the district entered jury against a number of manufacturers and against and of Jackson judgment in favor of asbestos materials al sellers that were except Company H.K. Porter all defendants Following legedly Ingalls. used at the dis $391,500 damages compensatory and for in certification, trict of class court’s denial $625,000 damages. punitive in combined complaint filed Jackson an amended in of this court affirmed appeal, panel On against defendants, eight whom twelve part, in and remanded the part, reversed granted settled and one of whom was sum trial. v. Johns- case for a new Jackson trial, By time mary judgment. (5th Corp., 727 F.2d 506 Manville Sales remaining defendants were Johns-Manville Cir.1984). rehearing, granted en banc We (Johns-Manville); Corporation H.K. Sales certify F.2d and now decide at (H.K. Porter); Company, and Mississippi Supreme sig Court three Porter Inc. questions Mississippi Raybestos-Manhattan, (RaybestosM law. Inc. nificant anhattan).1 AND HIS- I. FACTUAL PROCEDURAL TORY. argued at trial the three Jackson Mississip- under defendants were liable panel opinion fully

The sets forth the manufacturing case, 509-11, pi liability for at law of strict facts of this F.2d repeat summary only selling products them here made unrea- so we dangerous by fashion. fail- sonably defendants’ products’ ure inherent haz- to warn for Ingalls James L. Jackson worked addition, sought ards. In to recov- Jackson Corporation (Ingalls) its Shipbuilding at punitive ground er that the damages on Pascagoula, Mississippi, from 1953 yard conspired suppress had infor- defendants During Ingalls, his until 1971. tenure dangers concerning mation of asbestos first sheet-metal me- Jackson worked as a for disease asbestosis as a leaderman or chanic and then work response, three more than decades. mechanic, supervisor. As sheet-metal that, principally be- defendants contended asbestos-containing holes in Jackson drilled they knew nor had reason- cause neither gaskets materials and cut from asbestos able that their grounds believe working While leader- cloth. as work products any significant danger posed man, required move Jackson was around workers, they held shipyard could not be ships ex- making amidst naval craftsmen responsible injuries. There Jackson’s products. tensive use of asbestos jury Raybes- question capacities found that Johns-Manville and no Jackson both * opinion, Judge participate in In Part II of this Johns-Manville Jerre S. Williams did Raybestos-Manhattan will be referred to as the decision of this case. "defendants.” strictly were punitive liable allowance of damages tos-Manhattan to Jack- carries $391,500in compensatory damages. portent son for the manifest undoing the strict imposed damages jury liability remedy present also prospective $500,000 against $125,- Johns-Manville and claimants and where purposes puni- Raybestos-Manhattan. against Final- tive are otherwise served.” 727 was found to be ly, H.K. Porter not liable at 529. F.2d This court voted to rehear the to Jackson. The district court banc, entered en case thereby F.2d judgment accordingly. vacating panel opinion. See Fifth Cir- cuit Local Rule 41.3. panel appeal,

On of this court affirmed part, part, reversed and remanded. II. DISCUSSION. Following 727 F.2d 506. an extensive re- outset, II, At V, we reinstate Parts Mississippi of both view caselaw and the panel and VIII opinion, denominated record, panel instant found that Liability Tort,” “Strict “Proximate Cau- accurately applied district court had sation,” and “Disclosure to Jury Settle- Mississippi law strict and that Amounts,” respectively. ment The remain- sufficient evidence adduced trial was to panel opinion der of superseded in its support the necessary finding proximate entirety by this opinion. Because the de- panel cause. affirmed the moreover fendants, in their briefs the panel, before trial court’s refusal to jury disclose portion attacked the the judgment previ- the amounts for which Jackson had awarding compensatory damages primarily ously eight settled with of the initial de- by challenges means of admissibility to the nonetheless, panel, fendants. The ordered evidence, of certain challenges rather than ground new on the that trial the district to the applied, substantive law we address court had committed error in ad- reversible evidentiary first their challenges and then mitting items of posed two evidence that turn to their challenges. substantive law danger prejudice. substantial of unfair First, panel that, (1) found because Evidentiary A. Issues. did allege not that he Jackson suffered Simpson Papers. 1. The Sumner (2) clearly from cancer and it was estab- trial that Raybestos-Manhat lished at asbestosis itself does not Johns-Manville and cancer, cause or lead to the evidence of tan contend that the district commit court contracting increased can- by admitting Jackson’s risk ted reversible error three of Simpson cer introduced at trial was irrelevant or at papers.”2 so-called “Sumner of, papers among least should have been excluded under Fed- These consist other panel things, correspondence eral Rule Evidence 403. The left to and from Sum Simpson, occupied district court’s initial discretion on ner po who dominant Raybestos-Manhattan fear retrial whether evidence Jackson’s sition from 1929 letter, of cancer should be until his admitted whether death in 1953. The first 25, 1935, permitted September such a claim even dated was was written Second, panel magazine held that pleadings. the A.F. Rossiter of letter, Simpson papers” Simpson. too remote In “Sumner were Rossiter refers subject previous requests by Simpson in time and too attenuated in mat- made that nothing probative any published magazine fact and in that ter to be material con cerning posed under excluded the hazards thus also should have been letter, irrelevancy at least under dust. the second dated October rule 402 for 1, 1935, Simpson Brown, unduly Fi- being prejudicial. states to Vandiver rule 403 attorney, court Johns-Manville’s “the less nally, panel held the district puni- asbestos, recovery of said about the better off we are.” allowing also erred panel, pu- According Simpson in the refers to to the same letter also damages. tive English “where inappropriate articles on asbestos dust control nitive panel opinion. appendix in full in See 727 F.2d at 532-33. set out 2. These letters are sight.” has “been See also Borel Fibreboard Pa that Asbestos comments Eng- per Corp., 493 F.2d re-printing the Products decent about very (manufacturer letter, (5th Cir.1973) is held to third Finally, in the lish articles.” knowledge expert), cert. and skill of an later, replies: “I days Brown dated two 127, 42 denied, S.Ct. interests are agree you that our quite L.Ed.2d 107 by having receive asbestosis best served sug- He also publicity.” the minimum of argue letters are that the The defendants that, eventually gests they if should decide foreseeability probative no value as of such an publication object to the not to danger faced they refer because article, English data instead of American being plant workers in ex- by miners and theory the as- on the should be used asbestos, clearly and it was posed to raw “considerably milder” in bestos dust was that Jackson worked established at trial North America. solely products. with finished asbestos We an initial matter that the texts of note as Rule of Evidence Under Federal the letters themselves do not limit meets the threshold test evidence plant to miners or workers. discussion relevancy3 tends “to make if the evidence face, Rather, appear on their the letters fact that of conse the existence problems of pertain to the asbestos dust of the action quence to the determination Nevertheless, in general. control even as- probable probable or less than more suming correct in that defendants are the evidence.” Fed.R. be without would contention that the letters refer 401; Massey-Fer Evid. see also Carter workers, groups certain we think that to of (5th Inc., 347 716 F.2d Cir. guson, goes plainly such a distinction more to the 1983). introduced the Sumner Jackson weight admissibility of the than to the evi- show, to Simpson letters into evidence in indicating exposure study A that to dence. alia, Raybes ter that Johns-Manville likely to harm asbestos is cause to fibers knew or should have known tos-Manhattan group suggestive workers is at least one of dangers products posed to of the groups that of the fact other workers during years shipyard workers Jackson exposed to who are also asbestos fibers Ingalls. capacity worked in that Under dangers. The face similar letters were not § (Second)of Torts 402A com Restatement subject so remote in matter as be devoid only required is j,4 ment manufacturer a probative value. dangers he or warn of of which knew application Nor do believe that the letters are “by the we should have known they reasonable, developed because were written twen- human skill and fore- irrelevant allergic, provides: population number of the and the 3. Federal Rule of Evidence 402 danger ingredient general- admissible, is one whose is not except All evidence is relevant known, ly by or if is known one which con- provided the Constitution of as otherwise States, Congress, by by reasonably expect not to find the United rules, Act sumer would by prescribed give product, required other or rules is the seller statutory pursuant it, authori- warning knowledge, against if reasonable, or he ty. is not relevant is not Evidence which application developed hu- admissible. foresight man skill and should have knowl- Fed.R.Evid. edge, presence ingredient of the and the danger. poisonous in the case of Likewise (Second) § com- 4. Restatement of Torts 402A dangerous drugs, unduly those for other or' j pertinent part: ment reads in reasons, may required. warning be as to use warning. pre- In order to Directions or /. ****** unreasonably being product vent the dangerous, from give may required to may seller be warning given, is the seller rea- Where container, warning, as to or on the directions sonably it be read and heed- assume that will reasonably may assume its use. seller ed; bearing warning, product such allergies, ex- as for that those with common followed, not for use if it is which safe strawberries, be eggs aware ample to condition, unreasonably nor defective them, required to warn and he is dangerous. however, Where, product against them. a substantial ingredient to which contains an ty years began Jackson passions before sym work at jury invoke its Ingalls. alleged Moreover, pathies. at trial Jackson counsel Johns-Man dangers Raybestos-Manhattan ample ville and posed defendants knew of the had they opportunity, of which took full advan least between tage, fully to ensure jury appreci during time he handled the as ated the remoteness the letters both products. bestos Evidence that the defend in subject slight time and matter. knowledge such clearly ants had in 1935 danger that the admission of such evidence allegation makes Jackson’s the dan would have caused preju sufficient unfair gers products of the asbestos were foresee dice to ign warrant exclusion properly was probable able in 1953 more than it would See Gross v. Black & Decker ored.7 have been without such evidence. It re (U.S.), Inc., (5th 695 F.2d Cir. jury mains for the to determine whether Hearod, 1983); United States v. 499 F.2d after-acquired knowledge sufficient was (5th Cir.1974).8 duty absolve the defendants to warn.5 relevant, Although evidence can 2. Admission of Cancer Evidence. excluded under Federal Rule Evi trial, a expert At number of witnesses probative if dence 4036 its value is substan exposure testified that Jackson’s to asbes- tially outweighed by danger of unfair significantly tos increased his risk of con- A prejudice. trial court’s determination un tracting cancer. expert Three of these wit- 403, however, der rule will not be reversed nesses testified both that as- finding absent a of an abuse of discretion. bestos generally results in some increased Studios, Inc., Ballou v. Henri 656 F.2d that, risk of cancer upon based Jack- King v. Ford (5th Cir.1981); son’s medical records and history asbes- Co., Motor (5th Cir.1979). F.2d exposure, tos it could be estimated that no part We find abuse of discretion on the Jackson specifically greater had fif- than Nothing district court. the letters ty percent chance contracting asbestos- of such an inherent nature to inflame related cancer appeal, future. On opinion panel issues, 5. The misleading relies on the famous confusion of the or 1946, Fleischer, Report jury, delay, of Fleischer-Drinker ler, Vi- or considerations of undue Drinker, time, presentation Survey Pipe Gade & waste of A Health or needless Covering Operations Constructing cumulative in evidence. Naval Ves- sels, Hygiene (1946), Fed.R.Evid. 403. Toxicology & 28 J.Indus. 9 example developments as an of the research reject 7. We out of hand defendants' contention that occurred between 1935 and 1953. Other that fact that H.K. Porter was found not to trial, however, presented supports evidence at "beyond proves be liable rational debate” the injuries Jackson’s claim that his remained fore- prejudicial Simp- undue nature of the Sumner See, e.g., seeable and 1950’s. 1940’s Testi- 49, " noted, papers. panel As son ‘[w]hether Record, mony Schepers, Dr. Gerrit Vol. at jury’s verdict was the result of or carelessness Project, generally Special Analy- See 437-76. An compromise responsible or a belief Social, Legal, sis and Political Issues penalty individual should suffer the ... is im- Litigation, Raised 36 Vand.L.Rev. may indulge precisely material. Juries such (evidence (1983) prove 596-605 available to ” vagaries.’ (quoting motives or 727 F.2d at 524 against foreseeability manufacturers). Borel, 1094; original supra, at from United say We unable are to that as a matter of law the Dotterweich, 277, 279, v. States knowledge acquired after 1935 excused the de- (1943)). 88 L.Ed. 48 performing any duty might they fendants from place warnings have had to on their asbestos alleges 8. Johns-Manville also the district products. See Moran v. Johns-Manville Sales by admitting court committed reversible error (6th Cir.1982) (evi- Corp., 691 F.2d 814-15 pieces numerous other of evidence that were dence introduced at trial known or knowable danger such nature as to create a substantial ample). risks to insulation workers was prejudice. of unfair These items all were intro- duced to show that Johns-Manville had knowl- provides: 6. Federal Rule of Evidence 403 edge dangers of asbestos’ decades before Jack- relevant, Although began may working Ingalls. be exclud- son for essentially evidence For above, probative substantially ed if its out- the same reasons as those value is stated we find weighed by danger prejudice, no abuse of discretion. of unfair 1320 prevented from can be unsafe inherently Raybestos-Manhattan

Johns-Manville by furnish was unreasonably dangerous this evidence that admission of being assert relationship error because prejudicial adequate warning with ing the user not rele- asbestos and cancer was between product. the hazards See Borel v. addition, case. In to issue vant Paper supra, Corp., Products Fibreboard that, was they even if such evidence argue 1089-90; Alman Bros. Farms & Feed substantially relevant, impact its emotional Mill, Inc., Laboratories, Inc., v. Diamond value. In re- probative outweighed its (5th Cir.1971); 1302-03 437 F.2d alleges that the evidence sponse, Jackson Co., Pridgett v. Jackson Iron & Metal quite probative to and fact relevant was (Miss.1971). 837, 843-44 Because So.2d liability, mental an- his of the defendants' purposes warning is to one increased risk guish resulting from his his the user to make own decision allow cancer, availability prospective and the expose himself to the risks of whether damages associated with cancer. harm, Borel, supra, manufactur admissibility of Turning first duty er fulfills its to warn this context liability, we find to show cancer evidence dangers if all it warns of associated rule 401 cancer evidence was that under products its of which it has actual or de respect whether the relevant with knowledge. constructive See v. Pavlides duty In had warn. fendants State Basin, Inc., 727 F.2d Yacht Galveston Manufacturing Hodges, v. Co. Stove (5th Cir.1984); Karjala Johns-Man denied, (Miss.1966), cert. So.2d (8th Corp., F.2d 155 Products ville 17 L.Ed.2d 784 S.Ct. Cir.1975); Borel, supra, at 1089-90. (1967), Mississippi Supreme establishing scope of a manufacturer’s (Second) of Torts adopted Restatement warn, therefore, evidence all duty to § 402A,9 subjects at least insofar as man posed by the hazards known foreseeable injuries ufacturers strict Thus, in the product is relevant. instant in an unrea products sold caused case, a carcinogen evidence that asbestos dangerous k sonably condition. Comment § clearly probative of the nature and provides products some was 402A10 (Second) knowledge, quite incapable pro- of human of Torts 402A § 9. Restatement being vides: made for their intended and ordi- safe nary especially Special Liability use. These are common in of Seller of Product § 402A. outstanding example Physical drugs. Harm User Consumer the field of An (1) any product a who sells defective One the vaccine for the Pasteur treatment of ra- bies, dangerous unreasonably to the user condition uncommonly very to which not leads subject property is to or to his consumer damaging consequences serious and when it thereby liability physical for harm caused to injected. invariably is Since the disease itself consumer, prop- his or to the ultimate user death, marketing a leads to dreadful both the erty, if fully justified, and use are the of the vaccine (a) engaged of seller is in the business high degree notwithstanding the unavoidable product, selling and such a product, they of Such risk involve. (b) expected does the user is to and reach accompanied by prop- properly prepared, and change in or consumer without substantial defective, warning, is not er directions and which it is sold. the condition in dangerous____ unreasonably nor is it (1) (2) applies rule stated in Subsection qualifi- again products, with the seller of such although properly prepared they and cation that (a) possible all care has exercised the seller marketed, warning given, proper is where product, preparation his and sale of in the it, not to be held to the situation calls for consequences strict for unfortunate bought (b) has not consumer the user or use, attending merely because he has into contrac- product or entered from public ap- supply with an to undertaken the seller. tual relation with product, parently attend- useful and desirable (Second) § Torts 402A com- of 10. Restatement apparently reasonable ed with a known but part: provides ment k risk. products. There Unavoidably k. unsafe which, present products in the are some duty and defendants’ corre extent justify the inclusion of the evidence this sponding breach.11 case, provided, course, damages that the is relevant Although cancer evidence to of which the cancer pro evidence would be liability, the defendants’ we the issue of bative were available to Jackson as a mat admission, stand- ground that this think Thus, ter of law. because we have decided alone, under ing is insufficient Federal certify to the Mississippi Supreme Court justify the admis- 408 to Rule Evidence question types whether these of dam type quantity of cancer sion of the ages are recoverable Jackson plaintiff by the here. evidence adduced present context, B3, see Part infra no than nine ex- Jackson introduced fewer final decision as to the admissibility of the pert tied witnesses who cancer evidence must await that court’s risk in some manner to an increased response to our question. If the Mississip experts specifically Three of cancer. those pi Supreme Court holds that Jackson has had particular testified that Jackson in right no in the instant case dam recover percent greater fifty than chance con- ages either for probable cancer as a future tracting cancer. Johns-Manville consequence or anguish for mental for the argue Raybestos-Manhattan dis- fear of contracting cancer, then the cancer court abused its discretion in admit- trict evidence was wrongly admitted and new the dire ting cancer evidence because trial will If, however, order. consequences of symptoms and the disease Mississippi Supreme Court rules that either gener- so feared are well known and category of damages recoverable, on the public al that extensive evidence cancer evidence properly was admitted.12 mem- likely was to cause individual matter jury preju- to act out unfair bers B. Substantive Law—Punitive Dam- If evidence is relevant dice. the cancer ages, Anguish Mental and Probable agree liability, only to the defendants’ we Consequences. Future danger the defendants that original In the appeal of case, Johns- outweighed probative its prejudice unfair Raybestos-Manhattan Manville and argued value. damages should however, not be offers, recov two other Jackson erable as a matter of context admissibility grounds for the of the cancer litigation public because of certain (1) damages evidence: establish rea- policy considerations described resulting from below. The anguish sonable mental his defendants also (2) insisted that increased to establish risk cancer district court erroneously damages allowed the jury in connection with cancer award consequence compensatory complained future for mental anguish reasonably allegedly probable associated with condition Jackson’s increased ground risk of contracting occur. We think that either would cancer.13 Fi- concerning all-or-nothing 11. For evidence introduced at trial Because the defendants took an foreseeability position respect risk of the following exposure increased cancer at trial with cancer evi- asbestos, Testimony see position dence and have maintained this on Record, Schepers, Dr. Gerrit Vol. 410- Clearly, appeal, we do address this issue. if Ozonoff, 51, 12; Testimony of Dr. David Vol. kind the evidence was admissible as to one damages, 105; Testimony Hugh Jackson, 53, Mr. Vol. other, limiting not to but as a upon 1624-25. re- been in order have instruction would request was such an instruction quest. No for that, Mississippi Supreme recognize if the 12. We case. made in this damages anguish that for mental are Court rules specifically instruct court district never 13. context, damages but that for recoverable this such jury recover that Jackson could ed damages. probable consequence future are cancer as a not, Instead, that district court stated type that the then it could be claimed and following were recoverable: quantity this cancer evidence in case contin- you preponderance If find a pose great prejudice. a from to too risk of unfair ues plaintiff, grounds in this case that the James for ad- evidence This distinction between missibility verdict, Jackson, against any require to a evidence would L. entitled of the cancer herein, balancing analysis under rule or more of the defendants then in a 403. one different suffering that is the con the mental direct en court the defend- banc nally, before sequence district court was also increased risk of cancer argued ants allowing the jury If, to award by exposure. erroneous the asbestos on caused damages as compensatory cancer a hand, exposure to the other consequence of Jackson’s future probable invasion, regarded as too abstract an either plaintiff a un- condition. Because present general rule or the context of latent as a usually can recover Mississippi law der disease, litigation, tort and instead mass damages if compensatory types both to asbestosis itself is considered Jackson’s sufficiently to they tied the defendants’ are harm, may actionable Jackson be the Entex, Rasberry, v. wrong, Inc. see right damages to have no recover these 1102, (Miss.1978) (“where ... So.2d asbestosis alone does result an since injury from an will consequences future voting to re risk of cancer. increased had, ensue, may be but recovery therefor banc, requested en this court hear the case consequences must be estab- such future additionally in their parties to consider probabili- of reasonable lished in terms' briefings appro this case was an whether ties”); Devers, Sears, & v. Roebuck Co. imposi fashioning priate one for the (Miss.1981) (damages for 405 So.2d Upon tion of federal common law.14 care anguish they are when mental recoverable ful review of the excellent briefs submitted proximate natural and result of a are the caselaw, applicable we now con and the damages avail- wrong), whether these are Mississippi governs the reso clude may depend in the instant case on the able a punitive damages, cancer as lution injury. the actionable If the nature of consequence, mental probable future exposure injury was the to actionable here Moreover, anguish issues. because Missis insists, asbestos, may as he be Jackson yet give have a definite sippi courts to damages for entitled to recover those fu- pose, questions to these issues answer consequences, as such the manifesta- ture certify all three cancer, we determined be established in tion of could Mississippi Supreme Court. probabilities and for issues terms of reasonable for his pulmonary ance of fibers emitted bills and pital sworn wage-earning date that event it would be ries dence cation culating ages, date, lowing elements: the amount of treatment of be 4. The reasonable 1. The amount of proximate Mr. compensatory damages, required complained defendant or defendants herein. fairly if The reasonable value Any services, in this case are duty Jackson for charges any, injuries, sufferings expenses the amount of the impairment of evidence to plaintiff. disease and these necessary result of capacity. his take from the which your and medication reasonably compensate of. including complained of doctor, into consideration proved future for verdict at you reasonably your wages, have been treatment of his exposure product Mr. Jackson’s necessary called either hospital find from it would sworn doctor’s or conditions of of the medical plaintiff's if the a a any, sustained required to asbestos expected sum which preponder- duty and medi- condition. necessary fees, products expenses the the fol- lost to In cal- future actual to fix dam- your inju- hos- him evi- as 14. Our asbestosis sufficiently to asbestos. Record, Please refer probable panel reasonably aggravation direct result defect tion, resulting ment or include in L.Ed. permit suffered headnote discussion of what States, punitive rules court In this 5. All record, Tompkins, subsequent request Vol. opinion, or activation of litigants and mental substantive damage future broad regard physical pain ^[23] certain to suffer him to date court to read in Clearfield at 2444. These instructions are award from the (727 interpretative his to have allowed the consequence notwithstanding Mississippi also, you may existing discussion in Part awards consideration Erie R.R. your anguish complained law. pertinent part F.2d give appears briefing injury. Trust Co. and mental and such as he is 526-530). Supple- disease or on future federal such latent condi- to the and for cancer 58 S.Ct. decisions of his subsequent for Jackson's consider in this case future as a as follows: impact' of condition. L.Ed. v. United VI jury, physical anguish would any Co. on 1323 Unique 1. The Nature of Asbestos pace Liti- accelerated to the detriment of future gation. plaintiffs. To the defendants and the dis- sent, problems these and the need for na- advocating application In of federal tional solutions form an ample basis law, both the common defendants and the formulation of federal common law. distinguish dissent the instant case from personal injury routine on actions Question 2.f*The of Federal Common ground injuries that asbestos-related have Law. problem pro become a national of immense Any discussion of portions. federal common cited in panel opini Studies begin must with Tompkins, Erie R. on15 indicate Co. forty years the last 64, 817, 304 U.S. 58 21 S.Ct. 82 signif over million Americans have L.Ed. been 1188 (1938). Erie, In icantly Supreme exposed asbestos. These studies estab- lished 200,000 further that federal courts peo estimate that at least do not have the general ple powers law-making commonly die from asbestos-related cancer ex- by alone the end of ercised century. As courts. The Erie Court courts, widespread exposure result of the held that federal asbes courts of limit- 20,000 tos, personal jurisdiction, over ed injury empowered lawsuits are to make filed, already seeking been only those billions of laws authorized the Constitu- dollars in damages. Johns-Manville tion or Congress. re enactments of ports 78, alone is as a named defendant U.S. at Nevertheless, 58 S.Ct. 822. 14,000 suits, 10,000 in over almost Erie, Supreme since recog- Court has punitive damages seek substantial in addi responsibility “a nized in the absence of compensatory tion to relief. legislation, to fashion federal common law raising cases uniquely issues of federal that, It is feared present plaintiffs unless Airlines, concern.” Northwest Inc. v. damages are soon limited they can Transport America, Workers Union collect, early recoveries will create sub 95, 77, 1571, 101 S.Ct. 67 L.Ed.2d possibility responsible stantial that the cor (1981). instances, however, These porate be satisfy entities will unable to “few restricted.” Wheeldin v. Wheel- compensatory awards of future claimants. er, 647, 651, 1441, Defendants, dissent, and a number of respect L.Ed.2d 605 With urge that, specifically, commentators as kinds cases that do raise issues of sessments only “uniquely concern,” federal destroy viability threaten to of enter recently Court has most stated: prises through which loss distribution can [Ajbsent congressional accomplished, some incapable but also are authoriza- fulfilling punish tion to formulate dual functions of substantive rules of decision, ment and deterrence in federal the face common law exists industry’s in such virtual limitless narrow areas as those liabili concerned ty. Similarly, pro rights awards for mental obligations spective damages possible States, related to future United interstate and internation- disease, theoretically disputes manifestations implicating conflicting al recoverable when rights considered as of States or our relations with nations, injury, require foreign the actionable admiralty com eases. expend panies instances, system their resources at a more our federal does Seltzer, See reported 727 F.2d at supra. 524. Studies cited include See also In re Johns- Selikoff, Report Department (Bankr.S.D.N.Y. to the U.S. of La Corp., Manville 36 B.R. bor, Disability Compensation 1984) for Asbestos-Asso (projection potential of Johns-Manville’s (1982), ciated Disease in the United States re liability); Special Project, supra note at 580- Seltzer, ported Damages Punitive in Mass Tort Fairness, Litigation: Addressing the Problems of Control, Efficiency and L.Rev. 52 Fordham 16. See note 22. infra (1983); Congress Grapples n. 1 with Toxic Torts, L.J., col. Nat'l Jan. upon the law’ which neither stat- controversy common the to be resolved permit not law, the decisions of either State can be either au- utes nor because the state under in Similarly, 304 U.S. at as conclusive.” duties of United States thority and Milwaukee, Supreme intimately City v. involved or be- Illinois sovereign are Court, dispute a na- faced with over water or international interstate cause the Michigan, body in a of water controversy pollution Lake makes ture inappro- states, by four found that to control. bounded priate state law in na- fundamentally interstate conflict was Industries, v. Materi- Inc. Texas Radcliff in thus touched basic interests ture and Inc., 630, 641, 101 als, S.Ct. 451 U.S. that, in held such a federalism. The Court (1981). 2067, 68 L.Ed.2d 500 situation, applied. federal common Raybestos-Manhat- Johns-Manville 6.& n. 92 S.Ct. at 105 & n. yet tan, conceding Congress that while cases, the essential conflict was both remedy problems to take action quasi-sovereign as bodies states between can be exposure, present what of asbestos shared resources. Under such circum- over proposition arguments for the as taken two stances, single a state’s statutes deci- feder- uniquely involve problems could not be considered conclusive. sions displacement justifying al concerns litigation, on the In the realm of asbestos defendants, First, by echoed state law. hand, any plaintiffs, other conflict between dissent, argue potential con- that the exist, assuming may one to transcend even limited re- among plaintiffs for the flict rights lines does not state but involve analo- companies of the asbestos sources political of states as discrete duties gous conflicts over water to the interstate A conflict over resources of entities. held to rights pollution that have been industry merely the asbestos would be Accord- uniquely federal interests. involve plaintiffs in different states but between defendants, just state ing as one in plaintiffs the same state and between flowing of a river cannot divert the waters past, present, plain- and future between regard partially its borders without within if courts are re- Clearly, tiffs. federal downstream, group those one of states powers required as main courts of limited recovery by allowing the able should not be Erie, dispute under over common fund noncompensatory damages to divert and become “inter- or scarce resources cannot resources at the deplete corporate scarce state,” requiring the appli- in the sense of plaintiffs injured in other expense of law, merely cation of federal common be- states. cause conflict is not confined within the although superfi- argument, find this We single boundaries state. ultimately unpersua- cially plausible, be Second, argue analogy drawing defendants sive. Defendants in as rely uniquely there is a federal interest necessarily on such cases Hinderli- compensation suring injured persons and Creek Cherry der v. Plata River & La government suppli maintaining 82 in Co., S.Ct. Ditch 304 U.S. insist, interests, the defendants (1938), City ers. Both L.Ed. Illinois cre Milwaukee, substantially served would be restricting types rules ation of federal Hinderlider concerned L.Ed.2d rights recoverable asbestos suits. Col- the allocation water between making the defendants We think regard to the La orado and New Mexico argument nature of the River, misconceive the Colorado to Plata which flowed from requirement. uniquely federal interest benefically Mexico and New was used not mere Court, “Uniquely federal interests” are requir- both states. interests, the existence of ly apportioned, national ing equally river interests, signifi no matter their inter- national of an held the water “whether cance, give federal cannot themselves apportioned between state stream must be authority poli- supersede of ‘federal courts question the two States is

1325 Indeed, is cy. Supreme far too recently as the materials indirect justify to stated, enactment of a imposition federal rule in of federal See, common law. “[t]he concern, an area of national and the deci In re e.g., “Agent Orange” Product Lia to displace doing sion whether state law in Litigation, bility 987, (2d 635 F.2d 993 so, generally by made not the federal Cir.1980) (no policy federal at stake ac judiciary, purposefully insulated from dem tion war against veterans manufactur pressures, people ocratic but ers of defoliants used in Vietnam War that through representatives their elected is sufficient to warrant creation of federal Illinois, Congress.” City Milwaukee v. of law), denied, common 1128, cert. 454 U.S. 304, 312-13, 1784, 451 U.S. 101 S.Ct. 1789- 980, 102 (1981); 71 S.Ct. L.Ed.2d 116 cf. 90, (1981) (Milwaukee II). 68 L.Ed.2d 114 25, v. Miree DeKalb 433 County, U.S. 29- It is well-established instead that to be 32, 2490, 2493-97, 97 S.Ct. 53 L.Ed.2d “uniquely federal” and thus a sufficient (1977) (federal 557 interest in air travel predicate imposition of federal insufficient basis for creation of federal rule, an interest substantive must relate to law in action private parties between congressional policy an articulated or di have no direct effect on United States rectly implicate authority and duties of treasury); or its Bank American Na of See, sovereign. United e.g., States as Trust Savings Parnell, tional & Ass’n v. Industries, 641, supra, at 101 Texas S.Ct. 29, 33-34, 119, 352 121, U.S. 77 S.Ct. (authority at 2067 and duties United (1956) (interest L.Ed.2d 93 of government “intimately involved”); States must be speculative too and remote in action be 95, 101 Airlines, supra, Northwest S.Ct. private parties tween does touch (uniquely at 1582 concern is federal “the rights and States). duties of the United rights definition of and duties of the United Similarly, ensuring the availability com States”); Foods, v. United States Kimbell pensation injured plaintiffs predomi 715, 726, 1457, Inc., 1448, S.Ct. nately and, matter of state concern (1979)(federal governs 59 L.Ed.2d 711 enactments, absence of congressional rights of arising United States under na law, as both to extent of compensation program); tionwide federal Clearfield punitive damages, available and ap must States, 363, Trust Co. v. United recently term, ply. As last 573, 574, (1943) 63 S.Ct. L.Ed. principle Court reaffirmed this basic (federal governs rights common law American federalism when it stated in a pa duties of United on commercial States related context: “Punitive have issues). per which it long part principles been traditional Although individual members com above, state law. As noted Congress as Congress expressed mittees of con sumed that principles traditional of state problem litigat cern with the of asbestos apply tort law would with full force unless ion,17 Congress yet poli itself has make to they expressly supplanted.” were Silk cy Moreover, on this issue. defendants - Corp., U.S.-, wood Kerr-McGee point have been unable substan 615, 625, (1984). 78 L.Ed.2d 443 right duty tial federal government suggest- A related has directly that would be affected the out interest that been litigation. justify ed Any judicial come effect state the exercise of federal power in eventually law recoveries would have on this case is the federal court’s government’s ability “doing justice.” own interest in obtain needed It could be presented though, proposals none 17. Various have been has been enacted into however, Congress problems Congress concerning widespread recently, law. amended Longshoremen's arising exposure to asbestos. from the massive Harbor Workers’ Com- Act, Cong., pensation Liability respect S. 98th 1st Act with related See Product claims diseases, Compensa- (1983); occupational including resulting Occupational Disease Sess. those Cong., Longshore from the 1st Sess. asbestos. See Act 98th tion H.R. Recovery Compensation (1983); and Harbor Workers’ Act Act of Workers date, 98-426, To Pub.L. No. Cong., 98 Stat. S. 2d Sess. 98th Inc., tries, supra, at 2066 S.Ct. courts have an institu- federal argued that rights maintaining (denying against an- judi- federal contribution tional interest “just.” co-conspirators). fundamentally system titrust cial argu- sympathetic to such an we are While Finally, impracticalities we note the abstract, ment, that such an it is clear fashioning a in federal eommon law the a cannot form all-encompassing interest First, any litigation. of asbestos context the upon which to rest dis- basis sufficient displace this by court to state law decision First, find we of state law. placement geo- only be effective within our would diversity that in implicit in Erie the idea graphical jurisdiction. While is of course just in a court concerns actions federal in possible that other circuits would time a system be used as reason judicial cannot lead, our at least one circuit has follow policies. supplanting for substantive already expressly apply refused to federal matter, Second, practical a the certainly as in common law these circumstances. See judi- of federal resting effect of assertions Moran, (“relief sought supra, ... vague “jus- an interest as power on so cial granted may properly by be the state more complete- would be to eviscerate Erie tice” Court”). legislature by federal than ignore its constitutional under- ly and thus Supreme impos- until Court Unless and the Third, Supreme the itself pinnings. Court common law on the es a similar federal rejected a in already similar interest whole, any country a federal as substantive York, v. 326 U.S. Guaranty Trust Co. only by fashioned us would exacer- rules (1945). In that 89 L.Ed. 2079 65 S.Ct. alleged inequities among bate the claim- case, diversity plaintiff argued, inter the ants, types punitive and certain alia, equitable pow- court’s that the federal compensatory damages being available out- exception and constituted an ers discretion the circuit not within. Such a side but therefore, that, the federal to Erie and result, turn, encourage a in would massive not bound the state statute court was shopping bring at forum suits effort Court, Supreme reject- in limitations. The outside this circuit. claim, stated: ing plaintiff’s the Second, any we are unable discern a a adjudicating But since federal court easy application for governing principle of right solely of the state-created because imposition common in parties the of federal law diversity citizenship is effect, Although in asbestos context. the purpose, another the for that State, recovery plaintiffs it cannot afford recov- amount of available to court of large ery right depends part availability made una- in on the if the recover is scope damages nor can it punitive vailable the State substan- ac- tially right injury, many aspects affect the enforcement of other tionable given by litigation play significant the State. similarly role determining potential the size of awards. 108-09, A 65 S.Ct. at 1469. federal Id. applicable period for the limitations closely “doing equity" is court’s interest action, bringing example, of an for has a “doing justice.” It related to its interest recovery impact aggregate on direct Supreme doubtful availability of funds for future thus the Guaranty would have been Trust that, simple fact is claimants. once if displace willing more state law plaintiffs’ the need to limit recoveries successfully plaintiff additionally had justify creation of federal used sub- applicable state statute shown that precluding recovery stantive rules Obviously, jus- if “unjust.” limitations was narrowing scope for the justification as a tice could be used injury, of the actionable there would no be power, judicial federal naked exercise of restricting principled applica- means of assertion oft-repeated Court’s tion of federal common law other mat- common federal that the instances in ters, litiga- either in the context of restricted” “few governs are legal problems. tion or in relation to similar Texas Indus- true. longer would no Cf. Congress is consequence, generally As a federal courts would tern body respon increasingly responsible balancing become for estab for competing sible interests and lishing general federal tort law a man setting national policy. There is no doubt ner we think is inconsistent with teach desperate need exists for federal ings logic of Erie and the behind our feder legislation in the field litiga system. al v. Taylor, Parratt Congress’ matter, Cf. tion. silence on the how 1908, 1917, 68 L.Ed.2d ever, hardly judici authorizes the federal (1981)(due process clause not intended ary to assume itself the responsibility “a superim to be font tort law to be formulating essentially legis what posed upon systems may already whatever Displacement lative solutions. of state law States”) (quoting be administered primarily Congress, decision for Davis, 693, 701, Paul 96 S.Ct. Congress Miree, yet to supra, act. See 1155, 1160, (1976)). 47 405 L.Ed.2d at 97 at S.Ct. 2495.18 Third, displacement state in of law asbes- require tos cases would federal courts to 3. Certification. major principles reexamine the issues and It remains for us to consider under Mis litigation, in involved most of sissippi law the nature of the actionable presently are settled under state tort injury and availability punitive of dam result, As a progress law. currently of ages in the Upon asbestos context. review pending through asbestos cases the federal of the relevant caselaw and the briefs of system court would come a to virtual counsel, we find that these are issues cur quick standstill. The need to ensure reso- rently unresolved Mississippi juris under lution of the claims strongly militates prudence appropriate and are for certifica against taking such action. Mississippi Supreme tion to the pur Court sum, In we find that this case is not Mississippi suant Supreme Court Rule appropriate one for the creation of a 46.19 common federal law because of the absence above, As noted resolution of whether uniquely prac of a federal interest the district allowing court erred in Jackson problems tical that would attend the dis damages to recover associated with the placement Although law. federal probable manifestation of cancer as a fu- may common at times “necessary law be a consequence ture II, anguish or for expedient,” mental supra, Milwaukee at resulting from his (quoting 1791 increased risk at of cancer Committee for may depend Mississippi under Sewage Sys Consideration Jones Falls current doc- Train, (4th upon tem v. 539 F.2d 1008 trine the nature the actionable Cir.1976) (en banc)), under sys- injury. our federal This sois because asbestosis itself States, imposition appeals 18. Because we find that the of feder- of the United that there are clearly appropriate al common law is context, any in this proceedings ques- involved in it before certify we have determined not to propositions or tions lawof of this state question Supreme to the United States Court which are determinative of said cause inde- 1254(3), pursuant suggested by to 28 U.S.C.§ pendently questions other involved in States, See the dissent. Wisniewski v. United case said there are no clear control- 901, 902, 633, 634, 77 1 353 S.Ct. L.Ed.2d ling precedents in the decisions of the Su- (1957) curiam) (certification (per only prop- 658 State, preme Court such federal court proper iner rare instance advisable when rendering may certify a before decision such expedition judicial administration ness); busi- questions propositions of law of this state 55, 58, Perrin, States United v. 131 U.S. 9 Supreme Mississippi. Court 681, 682, (1889) (question S.Ct. 33 L.Ed. 88 Brown, Employees Government Co. v. Ins. 446 pose question of a difficult certified "a real must (Miss.1984). So.2d n. 1 1002 Wright, law”). point generally A. See 17 C. governed Texas law which our decision in Cooper, and Proce- & Practice Miller E. Federal Corp., Hansen v. Johns-Manville Prod. 734 F.2d § dure 4038. (5th Cir.1984), provided procedure 1036 no provides: certify question Rule Mississippi highest to that state’s court. Supreme Court of appears When States, any circuit court of or to the United the potential complexity of the risk of cancer increased cause to an

does not lead plaintiffs analysis required here, can Mississippi law certification policy and under suffering proba mental only recover principled reach a rather than is needed very consequences ble future result. See ex State Fla. conjectural result of the actionable the direct least are v. Corp., Exxon rel. Shevin F.2d Co., Sears, See, & Roebuck e.g., wrong. denied, Cir.), cert. (5th courts, supra, Mississippi how also, (1976); see S. L.Ed.2d 172 Ct. abstractly to ever, yet to consider how Brown, in Ac Certification —Federalism wrong the la involved characterize (1977).21 tion, L.Rev. 455 7 Cumberland context, and we mass tort disease and tent undertake are reluctant careful regard availability puni policies that competing state weighing damages, problem Al a similar exists. tive entail. On would such a determination damages generally though injury hand, characterizing as be one if engaged the defendants have available might provide the ing initial “wanton, gross or intentional conduct right under Missis plaintiff the traditional tort,” independent State the nature of an single action to recover sippi law Roberts, Farm Mutual Automobile Co. for mental an present damages, (Miss.1980), plaintiff 379 So.2d damages resulting guish, those future right Mississippi absolute under has no wrongful that act can be defendants’ from Mississippi punitive damages. courts probabil in of reasonable established terms clearly policy able to consider in deter are Entex, Inc., See, supra, at 1104. e.g., ities. punitive mining given in a case whether anguish for awards mental Substantial damages appropriate are all or at whether damages, the on other prospective for See particular a award excessive. especially with re hand, might jeopardize, Lacoste, C.L., T. Inc. v. (Miss. 431 So.2d 918 torts, viability spect the to mass Inc. 1983); Tideway Programs, Oil v. Se accomplish the strict enterprises that are rio, (Miss.1983). 460 n. 1 loss Be- So.2d liability goal of distribution.20 we that current the Contrary 21. While think under to the defendants’ contention opinion, Mississippi availability anguish damages of panel statute limita- the of mental describing circumstanc- damages probable cases under what tions for as a cancer future conse- periods begin specific do law, limitations run es depends upon quence a issue common necessarily provide ready a answer to this not certify questions Mississippi Su- both we case, problem. a a statute limitations fully recognize possibility preme the Court. We plaintiff's the need to obtain court must balance Mississippi Supreme may the Court deter- that adequate compensation the defend- at least that, regardless of action- mine the nature the against secure stale claims and need be ant’s injury, type in the mass tort context one able uncertainty of plan for the future without the to potential damages not should be recoverable but the oth- liability. Wilson v. Johns-Manville Supreme We further note that the Court of er. Mississippi, (D.C.Cir.1982). Corp., 684 F.2d Sales course, will bound in plaintiff in the statute of limitations context perimeters questions. way by the of the certified accruing as his action to be construed desires often stated: We have Here, the manifestation of disease. how- the ever, particular phrasing used certified [T]he clearly respec- parties have different Supreme question Jackson, instance, is not to restrict the Court’s arguing for tive interests. problems consideration of the involved expo- the actionable harm was the that perceives sure, Supreme As the issues as the Court not the manifestation of the disease. Ap- analysis Court Columbia Circuit to be of the record certi- the District of peals them in its Wilson, supra, at 118 & n. observed in this This extends to the fied in case. latitude no to think that the dimensions there is reason of the issue or Court's restatement inevitably pur- identical for all claim are of a issues and the manner in which answers limitations, poses. defini- as well as Statutes of given, comprehensive to be whether a as " justifica- injuries, ‘find tions actionable contingent or even in subordinate whole necessity rather than in in and convenience tion parts. expedients, logic. They represent rather than Rodriguez, n. 6 v. 394 F.2d Martinez (quoting principles.’’’ Chase Securi- Id. at 118 Cir.1968). (5th Donaldson, Corp. v. ties (1945)). 1142, 89 L.Ed. 1628 S.Ct. CLARK, case in Judge, GEE, We have found no which the Missis Chief with whom sippi Supreme has the GARZA, considered JOLLY, POLITZ and E. GRADY availability punitive damages in a mass Judges, dissenting. join, Circuit presented tort as one context such disagreement The nub of the with the Thus, light growing here. contro majority opinion premise lies in its essential versy years in recent surrounded justice abstract, is too too all-encom- availability such passing concept serve basis contexts,22we think it is in the interests supplanting state substantive law diver- justice the best administration of to allow Therefore, sity cases. the aim of dis- this Mississippi Supreme opportu Court the develop sent be to the values that nity weigh competing interests support premise existing precedent authoritatively stake and to declare Missis duty creates a to ask the Supreme Court of sippi policy on this issue. See Barnes United States instruct us on whether Co., Atlantic & Insurance Life Pacific federal common be applied law should Cir.1975) (“When (5th F.2d litigation. this especially state law is in on un doubt aims, derlying public policy it is the best majority “Mississippi labels justice administration of to afford liti diversity case.” While literally this is accu- gants a judicial consistent final resolution rate, misleading. it is Jackson a seminal by utilizing procedure.”). the certification rights case that will control the of untold Although certify we have determined to litigants thousands of in this court. The issues, first, prac- we as is our usual panel opinion cannot form proper premise tice, request parties joint to submit a dissent, for, like majority, too stipulated questions statement of facts gave adequate less than consideration to the Mississippi Supreme to be certified to impact unprecedented volume Following receipt response, Court. of a we litigation the asbestos in the federal court will transmit the formal certificate as well system. The number of the claims al- copies as the record in the case and ready legion increasing geometric and at a briefs, parties’ including any briefs sub- Compensation actions, rate. these response inquiry mitted to our herein. of concept most which are the founded on fault, of paid without be aby must CERTIFIED. group finite indeed limited of business RUBIN, Judge, B. ALVIN Circuit con- prevent entities and insurers. These facts curring. Leroy consideration of James Jackson’s preclude They case in also isolation. our Although I diversity think that cases dealing with Jackson and his cohorts aas banc,1 I not en should be reheard concur group litigants of whose cases should be opinion remanding because we are the governed by Mississippi ordinary under law opinion case to obtain the the of state Su diversity only Court, principles. just preme resolu- which alone can furnish us an certify tion this court is to authoritative on can achieve here state-law decision issues pending in to the United involved hundreds of cases States under § 1254(3) question federal district courts. 28 U.S.C. whether See, Owen, Damages e.g., awarding punitive damages Punitive Products with in mass tort (1976); Liability Litigation, context). 74 Mich.L.Rev. 1257 Comment, Seltzer, 15; Liability supra Mass note Overkill, Damages Hastings 30 L.J. and Punitive Co., Sturgeon Shipping 1. See v. Strachan 731 Comment, (1979); Damages, Punitive 1797 (5th Cir.1984) (en banc) (Rubin, F.2d Action, Concept Question Class Common J., dissenting); Monogram Edwards Co. v. In- (1982); Overkill, Szuch & Pac.L.J. Inc., (en dus., (5th Cir.1984) 730 F.2d Damages, Punitive Shelly, Time to Eliminate (Rubin, J., banc) concurring); Nash v. Es- cf. L.J., col. See also Nat’l Feb. telle, (5th Cir.1979) (en banc) F.2d Inc., Merrell, Roginsky 378 F.2d v. Richardson (Rubin, J., dissenting). Cir.1967) (describing (2d problems 838-41 However, no state can control the tort law developed to federal law must be common A its seeking protect state of another. interdependent uniquely mass govern this only shape can its max- own citizens law to tort litigation. recovery early plain- imize the of its own tiffs, that at will I so least those individuals for a impeded legal not scramble be filing years since the fifteen share of insufficient assets. suits, litigation field first of asbestos exploded.1 question We are confronted with not deal here has We do impact appli such already growing scope still limited as the astronomical and gov cation of a state statute of limitations seeking re plaintiffs individual number of erning of trust actions as did Guar breach against pool a finite of assets be coveries majority on which the relies. anty Trust3 group longing relatively of de to a small out, pointed As Frankfurter even Justice Because the insidious diseases fendants. gov generally such before Erie statutes latency these claims have giving rise to Rather, diversity suits.4 confront erned we up to periods ranging forty years, inju sequence of massive tort claims that many plaintiffs become ries unparalleled geographic and di financial There years to come. is a real manifest for confront cases mensions. We where danger present that the as available application governing princi divergent later sets will exhausted before those ples destroy rights similarly can compensation victims can seek situated claimants. We confront no less they This threat exacer are entitled.2 challenge purpose than our as courts. policies pertain bated inconsistent state ing litigation. The many elements of II danger of this are the two clearest sources application of inconsist- Just as rote major concepts at issue here: the availabili problem, ent laws cannot resolve this ty propriety too, any appellate action so this inferior restricting many the accrual of each cre- court alone would be ineffective. Our distinct diseases that can result from as govern ation of a federal common date bestos the actual of mani the Fifth asbestos actions within Circuit context,' In this con unique festation. inequities among fed- would eliminate case-by-case implementation tinued eral claimants in the area we serve. policies on an inconsistent basis will jurisdiction our contin- Courts outside could through permit plaintiffs, dispropor initial disparate apply policies. ques- ue to awards, only tionate to consume the assets resolving proper tion of federal common compensate later-filing available to but Supreme law rule must be certified to the deserving equally plaintiffs. judi- only Court United States —the many

Each touched this states capable providing right cial forum the litigation ensuring strong has a interest answer. compensation, full

that its citizens receive III regardless of when their individual claims Uncompensated and, indeed, accrue. could di- victims Modern strict almost products of rectly indirectly principles state itself. all tort are state law. or burden the convenience, filing bankruptcy. 1. For reader's factual informa- the In re Johns-Manville litiga- detailing tion the volume of this Corp., (Bkrtcy.S.D.N.Y.1984); current 36 B.R. 745 impact projected been tion and its future (Bkrtcy. In Corp., re Amatex 30 B.R. 310 Appendix. placed E.D.Pa.1983); Industries, Inc., In re U.N.R. 29 (N.D.Ill.1983). B.R. 743 reality danger emphasized by 2. The of this companies including fact that three asbestos York, Guaranty U.S. Trust Co. v. Johns-Manville, figure in the in- the dominant (1945). S.Ct. 89 L.Ed. 2079 bankruptcy pro- dustry, Chapter 11 have entered projected ceedings. cited the liabilities All have 4. Id. at 1470. liability as their reason suits products from the Tompkins Since Railroad state law Erie v. political between states as “discrete principles governed diversity trials. respectfully I disagree. entities.” This departure ignores This from dissent invokes no conclusion Burger’s Justice state However, ment that application well established rule. there of federal com mon equally authority precluded authentic that federal law not in all matters involving impose only private overarching forums must an citizens.8 rule It is incon justice sistent with accomplish litigation Hinderlider v. where the La Plata River Cherry Co., application Creek Ditch generated inconsistent rules 803, 811, (1938), 58 S.Ct. 82 L.Ed. conflicting states with interests can con companion sume case to Erie in purpose of the state which Justice law itself.5 Brandéis diversity continuing Even in announced vitality cases do not we become of federal common law proper courts of the states. That is under the why, circumstances.9 fidelity decision Hinderlider itself was an action to apply private rights enforce Court to state of a substantive law Colora cases, corporation. do diversity necessary it is to remember always duty perform that we retain the basis Hinderlider was an earlier system our tasks under our of federalism. apportionment case, water Kansas v. Colo- rado, 665-67, The instances where the formulation L.Ed. 956 Kansas, justified federal common law is “few are dispute ruled that interstate restricted.”6 over Federal common law only governs nonnavigable water in situations “our stream where federal was neces- subject sarily system permit federal controversy does common law be- cause there law, was no viable under means of resolved either because resolv- ing the conflict under state authority law. There- duties the United fore, obliged the Court was to formulate a sovereign intimately States as involved body of federal common law to “settle that because the interstate international dispute in such way as will recognize the controversy nature of the inappro makes it rights equal both at the same time priate for state law to control.”7 Here the justice establish between them.” Id. at competing presented by state interests nationwide flood of litigation

place this case well within the second cate Although both Hinderlider and Kansas gory as the interstate nature the contro specifically apportionment addressed the versy application makes of state law water, their underlying governs rationale inappropriate. equitable division scarce re- source between citizens different states

IV conflicting where state interests make the majority concludes federal com- use of either inappropriate. state’s law mon law is available to resolve an inter- present precise The asbestos cases state conflict if quandary. the essential conflict is pool The finite of assets avail- day Industries, Materials, 5. On the Justice wrote Brandeis in Erie 7. Texas Inc. Radcliff 630, Tompkins, 2061, Railroad v. 2067, Co. "There is no federal U.S. 101 S.Ct. 68 L.Ed.2d 500 law," 817, general (1938) common 58 S.Ct. 822 (1981). added), (emphasis in Hinderlider v. La Plata 92, Co., Cherry River and 304 Creek Ditch U.S. 25, County, 8. Miree v. DeKalb 433 U.S. 97 S.Ct. 803, 811, (1938), 58 S.Ct. 82 L.Ed. 1202 another 2496, 2490, (1977) C.J., (Burger, 557 L.Ed.2d private parties, case he between also wrote: concurring). interstate "whether the waters of an stream the apportioned must be between two states is a Sabbatino, 9. See Banco Nacional Cuba de v. question upon law’ ‘federal common which of 923, 939, U.S. 84 S.Ct. 11 L.Ed.2d 804 the decisions of neither the statutes nor either (1964). conclusive." can be Wheeler, v. Wheeldin (1963). 1441, 1445, L.Ed.2d single-case appli- These are values that no of claim- satisfy to an infinite number able any of state’s to expected cation can be to the limited ants identical value is an. riparian consider. many water available to serve owners. panel opinion explains sepa- The also that rate accrual dates for cause of for

An nation a action equitable resolution may surely each of the diseases result from scarce assets is competition wide ensuring a feder to important is vital to the basic interests equitable rational and distribution of avail- equities justify invoked to the alism as the expo- In law nuisance assets. some cases asbestos of a common able formulation dispute experi- lead to cancer. Present the between the several sure does to resolve indicates, however, pollution majority that the bordering the of Lake ence states over exposed develop do not the Michigan.10 of individuals plaintiff If a disease. who does not V to recov- asbestos-related cancer allowed damage er for cancer because he finds certainly presuming not to tell Although opine medical witness who will that there course of action to Court what may that he later probability a reasonable take, appropriate, seeking instruc- it is disease, develop the that individual’s dam- tions, say us. are not what divides We age be a if award will windfall the disease just on whether reach divided may never materializes. That windfall single through Supreme judicial resolution plaintiffs leave later unable secure com- certification, also on whether but actually pensation for diseases suffered. should be left to state law. that resolution govern Without uniform rules to this accru- uncertainty is demonstrated Our procedure al cannot courts ensure reasoning panel conflict between the as are such assets available be distrib- majority on and the en banc the substan- proportion injuries uted claimants in posed. tive issues suffered. Such claims must mature panel punitive found dam- capsule, diagnosed as each disease is so that each ages in a mass inappropriate tort context. may bring plaintiff separate claims based Repeated money” for awards of “smart facts, speculation, prop- on not and receive nothing socially do same conduct deter compensation. Only single er source liabil- undesirable behavior. enormous authority can avoid the destruction of ity imposed by compensatory awards in rights application valid claimants already has such de- cases achieved generated by forums inconsistent rules inequity terrence. Aside from the result- competing inconsistent interests. ing fact some do from the states not awards, permit they carry the such seeds VI ultimately purpose defeat basic says, product majority agree, law—to ensure that and we dangerous product, legislation preferred would be the solution manufacturers consumers, adequate injured providing bear the costs of dilemma early-fil- proper If awards to scheme for the of com injury. distribution assets, ing plaintiffs pensation. Congress late-com- But en exhaust failed to pro- compensation act ers or state health welfare bills injury. proposed costs of the to date.11 grams enjoy must Courts no com- bear Milwaukee, Act, Cong., (1983); City Occupa- S. 98th 1st Sess. Illinois Act, n. 31 L.Ed.2d 712 Compensation 1393-94 & tional S.Ct. Health Hazards H.R. Cong., (1982); 97th 2d Sess. Act, Compensation Health Hazards S 97th Recovery Act of S. 11. Workers (1981); Cong., Sess. 1st Asbestos Health Haz- (1984); Cong., Occupational Sess. 2d 98th Act, Compensation Cong., ards H.R. 97th Compensation Act of H.R. Disease 1st Sess. (1983); Liability Cong. Sess. Product 1st 98th properly to to to deal with the parable ability refuse decide cases this court cases brought us.13 before them. We must decide now before just But it is not Jackson’s claims. Jack- infringing than perogatives Rather rights Literally, son’s are at stake. Congress, judicial immediate unified ac- rights tens of thousands of claim- tion enhance ability Congress would presently being litigated in de- ants cases a recognized problem. to address All the pend on what we do. Untold thousands compensation legislation asbestos proposed yet more who have not manifested the premised is on the assumption that asbes- symptoms of the insidious diseases that can provide most, tos manufacturers will if not result from asbestos inhalation also fibre all, of necessary funding. option This depend upon decision. We cannot wait our will be foreclosed if these assets are ex- impasse Congress ultimately to if the in see prematurely by hausted excessive awards by lawmaking. bewill broken plaintiffs. Moreover, to current the inter- Court, Supreme as the institu ests of protecting individual states in their Congress capable impos other maturing tion than claimants with later disease will uniformity necessary ing any to resolve this unseemly be facilitated and conflict manner, in problem just a should be afford state law between rules will be eliminated. singular ed the chance to deal with the VII

problem presented by these cases. That power legal Court has the to formulate federal rights Jackson’s long been However, ensure equitable maturing. common law which will time the overriding importance compensation ability proper for all claimants. Its development controlling delay certifying to address the issues a makes the minor these single only necessary just single possesses voice is not for issues to the forum that litigation; power pending provide resolution of even the to an remedy effective important expeditious equita insignificant. relatively Supreme more A A questions ble settlement claims. uniform set of decision not answer certi- rights fied, only protect would rules not or an answer that a federal common applied claimants and the func law rule quick- individual effective should not be can be tioning judicial system, ly given. would Because the importance but of an compa aid the efforts of response also the asbestos affirmative substantive to the develop myriad confronting nies their insurers to an effec cases fed- courts, resolving disputes any delay resulting for procedure tive these eral from a resorting procedure on rational to the basis without certification would deal with disparate potential certainly courts. The out the merits would be worth the oppor- comes the different states could encour The decision to ask wait. age many plaintiffs tunity irretrievably to remain in courts lost. resorting

rather than unified nation majority unwilling request Since facility resolving disputes.12 wide instruction, certify it should not the issues Making judicial preclude proposed rules will not Court Missis sippi. legislative Congress If de- court’s resolution. does This refusal reconsider en Hansen,14 area, its cide act federal common law banc decision the issuance its case preempted. today’s declared the courts of mandate before would However, decided, legisla- coupled a future case was with loss of possibility of by chance obtain uniform a refusal rules from the justify tive solution does not Corp., Appendix 14. Hansen Johns-Manville Products See at 13 for discussion pro- (5th Cir.1984) dispute (declaring alternative mechanisms F.2d resolution 1040-42 posed by companies and their in- availability that Texas state law controlled the surers. punitive damages). Milwaukee, S.Ct. at City 13. See Illinois v. visory Committee Court, need to con- notes that certain cir-

Supreme eliminate in a case the ab- cumstances can call for the exclu- Despite sider such certification. unquestioned of evidence which prece- sion is controlling state court clear sence of explaining balancing the test damages relevance. punitive to whether dent as rule, required by they classify the evidence liability ac- product in should be available might purely induce a on a decision can mature as to actions tions and whether the most “Un- emotional basis harmful. they diagnosed, for before are diseases prejudice” expressly fair defined as an that no doubt the there can be tendency suggest undue to a decision on an that Missis- Mississippi would hold Court Finally, emotional the Committee basis. right not denied the should be sippi citizens requires given note that be to consideration to awards claim probable the lack effectiveness of a lim- diseases recovery probable future seek iting availability instruction of oth- protections of now accord- equal to the means proof. er possibil- Any in states. ed citizens other take ity Mississippi court would that the This circuit en banc has considered the opinion predicted panel in the approach application Rule 403 in a case criminal gone. context, Beechum, States v. United (5th Cir.1978), denied, F.2d 898 cert. VIII 59 L.Ed.2d 472 part in this The matters discussed (1979). There, required we courts to look involve to this court and do not internal probity” “incremental of the evi Except for the fol- issues to be certified. in in question analyzing dence offering discus- lowing response majority’s party’s make proof need to this form of 403 to the application Rule sion of tendency questioned and the evi admissibility rulings on the courts’ trial dence invite an irrational decision. evidence, panel suffi- opinion cancer can- why standards, reasons we ciently sets forth the we Applying these believe issue, II A. concur Part that as each individual and collec- single trial, tively preju- unfair majority opinion In Part II A.2 of its dice—a decision based on emotion not rea- ruling admitting the trial court’s addresses outweighs probity need for the Relevance, probity, and cancer evidence. son— evidence to —the prove Jackson’s case. they separately as prejudice are dealt with (1) scope of a three relate to issues: scope As to first issue—the duty to warn product defendant’s duty proof defendant’s warn and test — test; anguish, (2) damages for mental the inhalation fibers can proba- (3) damages to cancer as a due clearly relevant, but cause cancer not the expo- consequence future ble qua plaintiff’s case. non It has sine though Dealing these issues as sure. proved only probity. He incremental produces separated result they could be produced inhalation of asbestos fibers confusion ruling that creates tentative life damaging, threatening and shorten- life meaningful guidance to providing without body. Conceding ing consequence his striking the Rule courts terms trial duty or test arguendo that to warn above, explained As 403 balance. we heightened the incremental dif- could be suggestion is writ- majority’s indefinite product dangerousness ference in Mississippi Supreme ten in the sand. If the opposed to a caused asbestosis as ques- of the certified answers either asbestosis product that could cause both affirmative, they moot the tions cancer, slight is one of the difference suggestion. world, duty degree. real In the substantially iden- relevant, test be “Although warn and would provides: Rule The other side of the probative tical either case. if its may excluded evidence prejudice problem from substantially outweighed value is —flows —undue ” cancer, beyond proof of fact that doubt Ad- prejudice, — danger of unfair sequela weighings of its discussed. disease because If cancer dread evidence is any purpose, knowledge brings lack control or admitted for the of medical the hair it, prejudice of prejudicial probity evokes the with the hide highly cure is of for all purposes. prejudice strongest emotions. This of of coupled

must be the lack effective- IX limiting any ness of instruction to eliminate sum, the emotional reaction from the minds of the litigation asbestos-related Looking jury. just presents at the first issue in flood a of interrelated actions case, we submit that as a matter which properly Jackson’s cannot be decided as indi- legal law the 403 should be struck in vidual or of balance actions under the rules of any excluding single In any dependent favor of cancer evidence. state. Unless the rights event, ought present all and future the balance not rise or fall claimants are only capable considered forum prove many with how witnesses are used to devising single appropriate response carcinogenic propensities prod- basic issues that affect the economic vitali- uct. ty compensation fund, disparate Moving majority’s to the second ele- early awards destroy claimants can ment—the establishment of courts’ ability justice. do The asbestos anguish mental note outset at the that —we litigation presents one of the few and re- testimony entire of Jackson his stricted instances where formulation of wife, only witnesses who testified federal justified common law is under the state, his mental neither consideration of by existing precedent. strictures defined contracting an increased cancer risk nor statutory right Given our seek instruc- probability contracting the disease Court, Supreme tions from duty our ever Jackson Clearly, was mentioned. did not done unless we ask. Certification to prove not he mental that suffered an- the Mississippi only produce Court will de- guish because his work around with lay. asbestos had increased his risk contract- ing cancer. an increased risk of While X proof plain- cancer could critical be where certify following ques- We should anguish upon tiff testifies to mental based tions to the Court of United hazard, no that Jackson established need to § 1254(3): under 28 States U.S.C. prove that increased risk in this case. 1. Should federal common law limit or majority’s compartment final —dam- prohibit punitive damages award of ages probable for cancer as a future conse- litigation asserting strict quence past injury of Jackson’s one rights —is negligence against manufacturers

that our makes this discus- view whole products distributors asbestos or If the sion academic. reasons outlined containing asbestos. panel opinion accepted, Jackson’s 2. Should federal common law establish prospect cause of action for that future has measuring uniform rules accrual yet say materialized. Rule 403 would for separate latent causes of action proof he should able to make to the diseases related manufacture and only when and if he cancer. Al- contracts products distribution of asbestos or con- ternatively, if, for the reasons set out taining asbestos? above, question maturity of a cause certify, Because this court so declines action for cancer certified Su- we dissent. respectfully States, any preme the United rul- ing admissibility proof on under of cancer APPENDIX If Rule must await answer. DIMENSIONS OF ASBESTOS (or Mississippi un- federal common law LITIGATION certification) proposed der the majority’s potential litigation category for a No permits present action other tort disease, certainly change the approached, qualitatively other ever either it pervasive throughout America. bestos of the claims magnitude quantitatively, the country 1970’s alone consumed In the By exposure. on

premised 876,000 608,000 and tons short between in Borel the decision eight years after year.6 The substance is used in Corp., 493 Paper Products v. Fibreboard products commonly three thousand over Cir.1973), denied, (5th 419 cert. F.2d 1076 environments, found the home and work 127, 869, L.Ed.2d 107 42 tiles, textiles, including floor asbestos insu area of largest (1974), it had become lation, fireproof drapery, heat-resistant sur surpassing litigation, far liability product faces, ceilings, acoustical decorative build by con generated cases the number of ing panels, plaster and or stucco.7 Any drug Agent Orange, the troversies over substance, exposure even to rela device, DES, Shield intrauterine the Daikon amount, tively precipitate minute can defects.1 Between automobile or even development of asbestos-related disease.8 compa 1982 the asbestos early 1970’s and particular, mesothelioma, In an invariably expended over $1 insurers nies and their cancer, extremely fatal can result from low damage expenses, litigation billion long periods latency levels.9 figure does This awards settlements.2 disease, usually rang asbestos-related by costs incurred include the expenses ing years,10 and com between 15 and 40 make governments, federal claims, compensation pensation workers’ possible difficult ever determine if all Chapter resulting from the the costs exposed peri claimants a given within time Johns-Manville, by initiated proceedings example, od have been identified. For Unarco, and Amatex.3 many injured by expo workers asbestos The Claimants during I. sure World War II are now filing claims.11 21,000 August approximately product filed suits claimants had problem complicated

alleging injuries. by Seven is further asbestos-related figure emergence later March of frequently months new and unan- 24,000 Cur risen to claimants.4 had about ticipated plaintiffs. To classes of date being rently, docketed at an new suits shipyard most cases have' filed been average per rate of 500 month.5 workers, workers, product factory asbestos

A groups and insulation workers. Now new along plaintiffs points from different single There is authoritative estimate no line of emerg- distribution of asbestos are ulti- claims that of the number of asbestos ing. Potential claimants include ware- may Recognized experts mately filed. workers,- drivers, longshore- house truck figures. produced widely disparate men, spouses exposed As- Inconsistencies are understandable. workers when L.J., 19, 1981, 1; id., Social, Aug. Legal, at Raised 1. Nat’l Oct. col. Political Issues 18, 1980, Litigation, Asbestos col. 1. Vand.L.Rev. 580- Kakalik, Ebener, Felstiner, Haggstrom, & 2. 5, 573, Shanley, Litigation Special Project, supra, n. Com- 6. note Variation in Asbestos (Institute (Andrews) (citing Litig. Rep. pensation Expenses v. to Asbestos 181-82 Civil 27, 1979)). Justice, 1984) (Apr. Corp. [hereinafter Variation Rand Litigation Compensation and Ex- in Asbestos Id. penses 7. ]. Selikoff, Disease," in 8. “Asbestos-Associated As- 3. Id. (W. 1982). Litigation ed. bestos Alcorn Kakalik, Ebener, Felstiner, Haggstrom, & 4. (Insti- Litigation 36. Id. at Shanley, Asbestos 9. Costs of Justice, 1984) Corp. [herein- Rand tute for Civil Litigation, Litigation supra Costs note 10. ]. after Costs Asbestos 9,101 (Oct. 19, (Andrews) Rep. Litig. 5. Asbestos Project, Analysis 1984); An Special Id. see also B the worker returned home covered Experts anticipate do not that the death dust.12 rates from related diseases growing potential area of suits Another off begin to level until after 1990.19 Esti of asbestos use in the construc arises out vary mates of asbestos-related deaths also trade. The Environmental Protection tion widely. Corporation, The Rand approximately estimates that Agency 20% Litigation,20 pre study Costs Asbestos residential, commercial, apartment, Justice, pared Institute by its for Social buildings federal contain friable promi the results of the summarized more asbestos,13 in a form that can be —asbestos nent on this issue. studies powder by pressure, per reduced hand mitting asbestos fibers to become dis Selikoff, study for in a 1981 Irving Dr. lodged airborne.14 was used and Asbestos that estimated of Labor Department heavily during most construction living American work million than 21 more 1960’s,15until such use was restricted be as exposed to significantly ers have been and 1978. Most ex tween 1973 individuals years.21 More during past bestos posed building asbestos in construction placed the have estimates conservative begin and maintenance will not to manifest sig experienced who individuals number of until symptoms of asbestos disease af and eight at between nificant during majority exposed ter the of those mill thirteen or at over million22 eleven operations already shipbuilding died.16 ion.23 impact no firm There are estimates of the 200,000 anticipates Dr. Selikoff deaths occupants of of asbestos materials on the year before the 2000 because of asbestos- buildings containing materials. friable associated diseases.24 MacAvoy Paul However, Congress sufficiently con was University Yale mortality forecasts excess cerned about adverse health effects to through range due to asbestos the removal of all asbestos will mandate friable 154,600 450,600, and buildings.17 According from between with the most school Education, 14,- 265,000.25 Department probable least estimate set at Johns anticipates only 18,700 will schools be affected.18 Manville me- excess Selikoff, States, supra 12. Laboratory, note 8. Sciences Environmental Mt. City University Sinai of Medicine of School ' 13. Asbestos in Buildings: Survey (1981)). A National of New York (Envi- Asbestos-Containing Friable 2-3 Materials 1984). Agency ronmental Protection 5, Project, Special supra 22. note at 580 n. (citing National Cancer Institute and National 14. Id. at 1-1. Sciences, Institute of Environmental Health Es- timates the Fraction Cancer Incident in 7-20. 15. Id. at Occupational United States Attributable to Fac- 11, (draft 1978)). summary Sept. tors 1-2 16. Post, Toll, 17, Washington Sept. Asbestos’ (quoting at C col. 1 Dr. William Nichol- Occupational Compensation 23. Health Hazards son, diseases). expert on asbestos related Hearings Act on 1982: the Subcomm. before Comm, Labor Standards the House on Educa- 17. 3601(a)(3)(6). Report 20 U.S.C. § See Labor, (1982) Cong., tion and (statement 97th 2d Sess. 132 Attorney Liability, General on Asbestos House Martens, Harvey Mr. executive Labor, Cong., Comm. on Education & 1st 97th president, vice Commercial Union Insurance Sess. Inc.) (cited Companies, Special supra Project, 13). n. note at 580 18. 8,147 Litig. Rep. (Andrews) (April 20, 1984). Litigation, supra 24. Costs Asbestos note at 9 Selikoff, 22). (citing supra note 19. Project, Special supra note at 580. (citing MacAvoy et "The Id. at 10 al. Supra, note at 8-11. Consequences of Asbestos-Related Economic Disease,” Litigation, University supra Organization 21. Costs Asbestos note School of Yale Selikoff, (citing Working (Janu- Disability Compensation Management, Paper to I. No. 27 1982)). ary Asbestos-Associated Disease in the United

II. The Costs lung 55,120 excess deaths sothelioma A esti These through 2009.26 cancer deaths past studies comprehensive most deaths, only asbestos-related chart mates reports Corporation Rand the two costs not disabilities. Appendix.32 throughout this referred C defendant calculate These studies exposed to were paid individuals who insurers Not all their companies and die of those who will approximately even all of lawyers claimants actually This diseases and 1982. asbestos-related million between $400 awards, In including Research Epidemiology bring suit. trial encompasses figure that Johns-Manville estimated settlements.33 damages, stitute has suits, 120,000 30,000 fig impact of this faces between the economic appraising numb in re probable 45,000 ure, as the most must aware set reader demon MacAvoy has estimated have been years jury verdicts Paul cent er.27 suits,28 trend.34 200,000 upward pronounced new strating a be over there will fees legal include placed Moreover, does not Company has Conning and while pro expense incurred 178,000 year litigation by the 83,000 and between differences, themselves. all ducers Despite substantial 2010.29 that asbes support the conclusion sources average plaintiffs’ The verdict after a unprece face an and courts producers tos $388,000.35 trial importance was The of years of claimants dented number limiting actually claims to those diseases come. diagnosed by is demonstrated these aver developing over latent claims As age jury $205,000, verdicts: asbestosis— party injured time, likelihood that $311,000, lung and mesothelioma— cancer— Only increasing rapidly. go to court is will $469,000.36 deaths between the asbestos-related of 3% suits, by but resulted in law Litigation Reporter 1967-1968 deter The Asbestos 1975-76, figure had risen cases tried a this 32%.30 of the 147 asbestos mined that suits, $39,468,002 of future estimating punitive in numbers total of all as The assuming plaintiffs.37 to 21 experts are had awarded been litigat in the issues of Study deaths result also addressed Rand bestos-related During sample peri increasing propensity damages. this ion.31 When 26, chosen, 1, August mounting January of 1980 to numbers od combined with sue is 1982, plaintiffs, of those produc nineteen on both 27% injured parties burden verdict, jury in re trials resulted stemming from the asbestos whose ers and courts $4,934,000 punitive dam- a total of ceived staggering. litigation becomes Litigation, Walker, Asbestos Costs and 32. Variation in Projections Dis- Asbestos-Related. 26. 2; Litigation, supra 1980-2009, (Epidemiology supra, Costs Asbestos Report, Re- note ease Final sources, 1982) (cited Asbestos 4. in Costs note Inc. 4, 11). Litigation, supra at note 4, Litigation, supra at note Costs in Asbestos 33. 743, Corp., 36 B.R. In re Johns-Manville 27. 17. (Bkrtcy.S.D.N.Y.1984). 1983, D-2, Times, January col. 1 34. N.Y. supra at Litigation, note Asbestos 28. Costs of Johns-Manville, 746). (cited B.R. at re in In MacAvoy, supra 20. citing note Impact Company, Conning Litigation Compensa- The Potential & 29. Asbestos 35. Variation in (1982) (cited Industry the Insurance supra Asbestos on at 21. Expenses, note tion and Compensa- Litigation Variations in 4). supra Expenses, note tion and at 30. 36. Id. Litigation, supra, note Costs Asbestos 30. Project, at 707 n. 853 supra, note Special 37. 9. (Andrews) Litig. Rep. 5663-71 (citing Asbestos 8, 1982)). (Oct. Id. at 10 n. total liability confronting mated the ranged awards, The from ages. its industries and insurers. Their esti $260,000 million, averaged per $4,000 to $1 vary as widely mates those attempting damages. receiving punitive If plaintiff predict the number of future deaths or apportioned between all this amount was study The Rand suits. describes verdicts, net jury effect plaintiffs with results of three such studies. Paul MacA plaintiffs average to raise each would be voy anticipates compensation a future lia $70,000.38 These awards compensation by bility billion, between billion and $8 $87 becoming more numerous but are not billion as the most likely $38 sum.46 larger. puni By the number also Conning Company placed has future Ten thirty.39 tive had such awards risen liability industry arising insurance $616,000, awards, averaging now exposure from asbestos range within the alone.40 against been returned Manville billion to Corpo $4 $10 billion.47 Manville multiplication these is dem awards ration, Chapter 11 proceedings, its Eastern onstrated a recent case estimated own its future at mini jury District of Texas returned a where billion,48 mum of presiding $2 but the bank punitive damage million to award $1 ruptcy judge has observed that there are plaintiffs.41 each the four one This ver many figure indications that is too equals given dict almost the awards over Academy York conservative.49 New period the entire studied Rand. Science has estimated the social costs of study The Rand also demonstrated how a the death disability resulting as from governing punitive state with laws liberal bestos at between billion and $39 gain dispropor can damages effectively years.50 billion over the $74 next through share of tionate assets Pennsylvania, Citizens of whose awards. It is figures unclear whether these en awards,42 encourage punitive received laws compass liability arising from the use million awarded $5 two-thirds almost buildings. present, At removal eighteen during period month studied.43 mandatory of this material in only only plaintiffs While of the nationwide 14% A study schools. recent De began period whose trials relevant in partment of Education estimates this awards,44 punitive of the received 34% 14,000 some volves schools that remov in Pennsylvania plaintiffs group were costs reach al At least $1.4 billion.51 given punitive damages.45 forty against school districts have filed suit B companies compen the asbestos to obtain punitive liability con- sation for the removal of the The ultimate asbestos. Many companies seeking of these suits are mil fronts the asbestos cannot be also predicted reliably. Many have esti- lions of in studies dollars awards.52 38. Id. 50. 45. Id. at 71. at Brownstein, Litigation: Legal A

39. Asbestos Litigation, supra 46. Costs note at End, Nightmare Congress Being That Asked 10. (1983). J. 15 Nat’l 47. Id. Johns-Manville, 36 40. B.R. at 746. re Johns-Manville, In re 48. 36 B.R. 746. 9,169 (Nov. 2, (Andrews) Litig. Rep.

41. Asbestos 1984). Id. 49. Surrick, Damages Asbestos Liti- 42. Punitive Project, Special supra 21. 50. note 581 n. gation Pennsylvania: Punishment Annihi- in lation, 87 Dick.L.Rev. 280-83 8,147 Litig. (Andrews) (April Rep. 51. Asbestos 20, 1984). Litigation Compensa- 43. in Asbestos Variations Expenses, supra note at 71. tion and 9,253 Litig. (Andrews) (Nov. Rep. 52. Asbestos 16, 1984). Id. at proportion of the cases filed to date is The Defendants

III. shipbuild in those found states where the industry is relatively ing small centered. a national On liability confronts This in basis, their companies slightly more than half of the claims group asbestos twenty defend average, by August On the surers. in closed of 1982 were filed Although in each suit. named ants court. federal In two of the five states corpora different three hundred than more generating litigation, Jersey most New sued, actually liability is been tions have Texas, over of the closed claims 90% very group. Sixteen small on focused court, brought were in federal while in at least half of are named in corporations Pennsylvania, California also within fifteen are group Another all the suits. group, over of the two-thirds closed the suits.53 one-half of one-quarter claims were filed in state All courts. feder defend the 300 the bulk of Accordingly, together al courts have tried about 10% in the overall minimal role play ants more suits than courts.58 According litigation. amount of Courts, Office of the Administrative cov producers claim to be Most asbestos 30,1980 as June cases were all of their part by insurance ered among divided the district courts in each some fifty insurers have About exposure. as circuit follows:59 can be involvement, twelve but about 5th Circuit—39% cont in this deeply involved characterized 1st Circuit—24% likely of asbestos number roversy.54 2d Circuit—8% ultimately covered insurance claims 4th Circuit—8% ongo widespread light uncertain 3d Circuit—7% coverage provided ing litigation over 6th Circuit—4% question.55 policies 9th Circuit—3% the com assessment totals No available 11th Circuit—3% defendants bined assets 7th Circuit—2% However, companies. insurance and their pending Less than of the cases are 1% Company, Union Insurance the Commercial 8th, 10th, within and D.C. Circuits. supporting a amicus curiae brief Compa petition for certiorari Insurance Corp., has America v. Keene

ny North Industry Response An V. insur that the net worth estimated involved to be billion companies $9.7 ance producers and their The asbestos insur- companies as $25.6 the asbestos and that of guidance companies, under the ance bill billion, total of $35.3 for a combined Wellington of Yale Law School re- Dean of the liabili This is less than most ion.56 agreed cently have to establish Asbes- Man- ty in Part II B. described estimates Facility designed to settle claims tos Claims has an ville, largest producers arising injuries. from The Facili- doll billion $1 net worth estimated institution to ty, be national evalu- would ars.57 the existence and extent of ate asbestos-re- IV. Courts each physical impairment for claim- lated It would also assess proceeding ant. litigation is Asbestos-related belonging Facility, largest companies forty-eight those states. at least Afelli, Management by Bankruptcy, Fortune Litigation, supra note 57. Asbestos 53. Costs of (Oct. 1983). 12. Litigation, supra note 58. Costs Id.

54. 10. Project, supra note at 709-73. Special 55. See from David Cook of the Administrative Letter Judge States Courts United (Andrews) Office Rep. Litig. 4367-69 56. Asbestos 4, 1984). (Sept. Clark Charles 1982). (Jan. defenses any applicable and consider agreement

setoffs. The terms of the es provide for the

tablishing Facility also companies to reimburse

member insurance companies paid for claims ac

the asbestos

cording prescribed formula.60 to a LYFORD, Individually and on

Joan E. persons similarly of all other

behalf

situated, Plaintiff-Appellant,

Ralph Pan American SCHILLING

University, Defendants-Appellees.

No. 83-2213. Appeals,

United States Court

Fifth Circuit.

Jan.

Rehearing Rehearing En Banc 19,1985.

Denied March 60. High Litigation Facility Welling- Claims Goes Public: natives to the Cost of 2-5 One, Negotiations in Round ton 2 Alter- Succeed

Case Details

Case Name: James Leroy Jackson v. Johns-Manville Sales Corporation and Raybestos-Manhattan, Inc.

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 21, 1985

Citation: 750 F.2d 1314

Docket Number: 82-4288

Court Abbreviation: 5th Cir.