Martin v. Johns-Manville Corp.

same offense. The fact that makes no appellant showing prejudice actual or intention of the to en Commonwealth hance the of a conviction no possibility bearing has on Somerville, issue. The Court Illinois v. stated: “Nor will the lack of demonstrable additional prejudice preclude jeopardy defendant’s invocation of double bar....” 471, at Id. S.Ct. 1073. against constitutional

Appellant’s protection jeop- double violated when the second was ardy jury empaneled precluded sworn. Therefore the Commonwealth is from future in this matter. The initiating any prosecution order 14, on directing appellant entered October to stand 11, trial on 1982 should be reversed and appel- November discharged. lant

469 A.2d 655 MARTIN, Joseph Appellant Pgh. Edward at No. 1323 CORPORATION, Pittsburgh Corning JOHNS-MANVILLE Cor poration, Owens-Corning Fiberglas Corp., Eagle-Pitcher In Insulations, Inc., dustries, Inc., Forty-Eight the Celotex Cor Industries, Inc., poration, Corporation, Keene Unarco Com Inc., Manhattan, Raybestos Engineering Inc. bustion SUPPLIES, INC., FURNACE

INDUSTRIAL OWENS-ILLINOIS, INC. ENGINEERING, INC., Appeal of at No. COMBUSTION Pgh. 1982. Superior Pennsylvania. Court

Argued April 1983. Dec. 1983. Filed April Appeal Petition for Allowance of Granted Willman, Pittsburgh, Engi- Richard K. for Combustion (at 1322) (at 1323). No. and No. neering, appellant appellee Martin, Caroselli, (at Pittsburgh, appellant R. for William 1323) (at 1322). No. appellee No. and Owens-Corning, appel- for Riley, Pittsburgh, Patrick R. lee. Celotex, McAllister, Pittsburgh, appellee.

Kathleen for S. Jordan, IV, Pittsburgh, Raybestos, appellee. John W. SPAETH, CERCONE, HES- Judge, Before President WICKERSHAM, TER, CAVANAUGH, WIEAND HOFFMAN, JJ.

SPAETH, Judge: case on an and appeal cross-appeal. Appel- This arises lant, Martin,1 Joseph Edward seeks and compensatory puni- damages tive for asbestosis and related diseases. He re- verdict, ceived a in his and he inadequate but view it was asks us to reverse the trial court’s denial his motion for a trial argues new limited to the issue of He damages. (1) the trial court in: might erred evidence that he excluding develop bronchogenic exposure carcinoma as a result of his asbestos; (2) instructing that it could reduce' its jury damages award of to reflect the amount of harm attributa- (3) cigarette smoking; refusing ble to his to submit the (4) punitive issue of and damages jury; refusing to admit certain Cross-appel- medical exhibits into evidence. lant, Inc., Engineering, appellee, argues Combustion also an that the in refusing grant trial court erred its motion for n.o.v. and in judgment refusing to remоve the verdict that had been directed favor of Raybestos-Manhattan, Inc. appellant: As to We hold that the trial court did not err respect with the medical exhibits did err in excluding but evidence that appellant might develop bronchogenic cancer and in refusing submit the issue of damages to (We jury. issue.) need not reach the cigarette smoking therefore We reverse remand for a new trial limited to damages. the issue of As to cross-appellant: We find no it, error and therefore as to we affirm. -1-

Joseph Edward Martin was an insulation worker whose work him brought repeated contact with asbestos fi- into August action, In 1978 he brought trespass bers. this seeking compensatory asbestosis and related diseases. The was tried to a which jury, action $67,000 awarded compensatory damages against all of the defendants other than Inc. Raybestos-Manhattan, first, erred in

Appellant argues, grant- that the trial court ing appellees’ motion in limine to exclude evidence that his Appellant 1. We are advised that Martin has died. Brief for Martin at exposure to asbestos increased his risk of bron- contracting carcinoma. chogenic agree. We It is settled that a in a plaintiff personal injury action may expert past introduce that as a result of the testimony injury compensation, may experience for which he seeks he in the physical certain adverse effects future.2 v. Walsh 293, (1971); Pa.Super. 220 286 A.2d 666 Brody, Schwegel 280, (1967); A.2d Pa.Super. 209 228 405 Goldberg, Boyle 614, (1961). R. 403 Pa. 170 A.2d 865 Pennsylvania permitting expert testimony regarding The reason for plaintiffs prognosis was well-stated Schwegel: is nothing evidentially improper There about this testimo- holding If we were to rule it out we would be ny. such future effects are not entitled to consid- possible any as a matter of law. II Wigmore, eration substantive See § 663(1), (3d 1940). Ed. That Evidence would be unfair within brought since the action must be the time limita- damages, past, present tions fixed our law and all future, must determined in that one action. be 287, Pa.Super. 209 228 A.2d at 409. Id. Pa.Super. v. Johns-Manville 304 Corp.,

See also Staiano 280, 296, 681, (1982)(“[N]ew 450 A.2d 688 limitation.period run time develops does not start to each a new disease from defendant.”); tortious conduct of the the same Shadle v. 436, Pearce, (1981) (same). A.2d Pa.Super. 287 430 683 say testimony regarding 2. This is not to the risk of future adverse injury invariably past is effects from sufficient to warrant submission question plaintiff compensated whether the should be such Althоugh expert testifying prognosis future effects. an as to "cannot express opinion required required be his with definiteness in a question,” Pennsylvania Sports Enterprises, Stevenson v. causation 236, Inc., 157, 165, A.2d see 372 Pa. also Hamil 256, 10, 1280, Bashline, (1978), 273 n. 392 A.2d 1288 n. 10 an expert’s plaintiff mere conclusion that the suffer certain adverse future, any effects in the without discussion of the likelihood that that occur, question will is insufficient to warrant submission of the plaintiff whether is entitled to for such future effects. (1952), Eglin, Pa. See Lorch v. 85 A.2d 841 construed in (1967). Goldberg, Pa.Super. Schwegel v. 228 A.2d 405 See Mennella, Pa.Super. A.2d also Baccare v. any exclude “refer- opposition appellees’ In motion to cancer,” N.T. counsel submitted appellant’s ence to proof: offer of following Sachs, has In the of Dr. which report

MR. CAROSELLI: statement, there pretrial offered and attached to our been contracting an that this man is at risk of indication that the risk adopted cancer. courts have Pennsylvania is, fact, cases and damage personal injury of cancer testimony regard in this I in that regard any believe ought to allowed.

THE to it? Anybody speak COURT: else wish to Caroselli, you going any THE Mr. are to have COURT: plaintiff yours evidence whatsoever that this has or any ever had cancer? know, your

MR. I don’t Honor. He has CAROSELLI: perhaps some is consistent with symptomatology cancer. having report hemoptysis—

Dr. Sachs indicated his he had THE is COURT: What that?

MR. CAROSELLI: I believe it will Coughing blood. Dr. on the that- testimony exposure Sachs’ based had, has, symptomatology he has based on the that he effect, now, inmay, there be cancer which exists is not he certainly which detectable but is most at risk. THE COURT: The motion to exclude reference to any cancer of the is by any granted. witnesses

$ $ $ $ $ # IMay MR. CAROSELLI: have a clarification on that. Do mean that Dr. Sachs talk the you cannot about risk of this man?

THE COURT: There will be no mention of cancer in any shape or form.

N.T. at 32-35. In this the trial explaining ruling', appel- court states that proof lant’s offer of was “The Plaintiff did not inadequate: introduce other or any testimony offer to evidence of the possibility developing cancer as a result of asbestos

exposure, such as a statistical or an epidemiological analysis at Slip op. risk.”

An of proof adequate offer if it “state[s] purpose testimony sought to be in such a [of introduced] manner that the court may perceive its relevancy ....” McCallum, 554, 561, Germantown ‍​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​​‌‌​‌‌​‌​‌​​​‌​‌‌​​‌​​‌​‌‍Dairy Co. (1909), A. 885 quoted v. Metropolitan Cockcroft Life 598, 602, Pa.Super. Insurance A.2d (1938). See also Societa Palmolese Di Protezione E. Bene Maiale, 143 Pa.Super. 17 A.2d 925 ficenza Frank, Pa.Super. Barrilo v. 177 A. 58 Here, appellant’s adequate offer was to inform the trial court that the purpose expert’s of his testimony would tobe show that his exposure to asbestos increased his risk of cancer, contracting and that his hemoptysis indicated that Indeed, he might already have cancer. opinion court’s reveals that it understood this to be the purpose of the Thus the testimony. court states: “In opposition to the limine, defendants’ motion in plaintiff relied solely upon the Sachs report proposed Sachs’ testimony consistent therewith. The plaintiff indicated that Sachs’ testimony regarding Martin’s risk of developing cancer would be upon based Martin’s history exposure asbestos and the of hemoptysis.” Slip op. addition, incidence In 4-5. proffered testimony patently relevant question whether appellant was entitled to recover damages to com risk pensate might that he suffer adverse effects in the future as a result of his past exposure to asbestos. The trial court therefore erred in ruling appellant’s that offer of proof inadequate. was

Appellees however, argue, that the trial ruling court’s proper nonetheless under Rule 212 of the Allegheny Procedure, County Rules of Civil which provides: Plaintiff, (30) A. thirty within days after notice of a pre-trial conciliation conference as in provided Paragraph II hereof:

(1) upon parties all a written statement con- Shall serve taining:

(d) expert The will reports any opinion of whose be reports offered in evidence at the time of trial. Such the findings expert. the conclusion of shall include and revealed as have not E. Witnesses whose identities been VLC.(l)(a), or VI.A.(l)(b) paragraph and provided VI.A.(a)(c) not been furnished under reports whose have not, (d) any VI.C.(l)(c) (d), and will under supra and and whatsoever, testify be to at the permitted circumstances subsequent trial of case. the notify to argue appellant not that failed them

Appellees do expert as an witness testify Dr. would Murray Sachs behalf, provide them with appellant their or that failed on Rather, the argue that copy report. they of Dr. Sachs’s a report appellant in Dr. suffered statements Sachs’s asbestosis,” disease with lung from “chronic obstructive of broncho- possibility could not “exclude the and he diagnosis must be con- carcinoma and this genic [that] hemoptysis,” did particularly light of his recent sidered con- “findings a statement of represent not sufficient appellant might contract cancer clusions” to the effect that as a result of his asbestos. exposure Gold- purpose The of Rule was stated Sindler (1982) 7, 12, man, 309 A.2d Pa.Super. omitted): (footnote sur- prevent

The rules is to purpose discovery a trial on the merits. allow prise and unfairness involved, is more crucial it even testimony expert When will not attorneys prevented, since surprise which to knowledge subject with requisite have the testimony. allowing By effectively unexpected rebut their conclu- expert witnesses and early identification of sions, prepare respond appropri- can opposing side on expertise to match trying years ately instead Thus, procedural more than serves as spot. rule it technicality; provides a shield prevent to the unfair advantage having a surprise witness testify. purpose

Since the of the rule is prevent to surprise, we have found experts’ reports to be adequate to preserve party’s right to examine the expert on a particular issue at trial when the report provides sufficient notice of the ex- pert’s theory to enable the opposing party to prepare a rebuttal witness. Compare v. Allegheny Starr General Hospital, 305 Pa.Super. (1982) A.2d 499 (Expert’s report stating appellant’s condition was not caused either by operation undertaken to repair damage skull or by post-operative care put sufficient to appellees on notice expert would testify that initial injury to skull was condition, cause of so that expert testimony to that effect was proper 212) under Rule and Piekarski v. Club Over- Estates, Inc., look 162, 174-76, 281 Pa.Super. 421 A.2d (1980) (Expert’s report setting forth his “central conclusions” was sufficient preserve party’s right examine witness on that subject under Rule 212 because it “enabled opposing party] to present appropriate an [the rebuttal witness to contest point this points other it”) related to with Bell v. Pennsylvania Western Hospital, 37, 40-41, 293 Pa.Super. (Because 437 A.2d (1981) expert’s report that there was “nо evidence of negligence” put plaintiff did not on notice that expert testify would plaintiff was not fact injured, testimony to this effect should have precluded 212). been under Rule

Here, Dr. Sachs’s statements that appellant had as bestosis, and that he could not “exclude the possibility of bronchogenic carcinoma” were adequate place appellees appellant on notice that might advance the theory trial his exposure to asbestos had increased his risk of contracting bronchogenic carcinoma and that he was enti tled compensated to be in damages for this increased risk.3 Appellees emphasize report, that Dr. appellant Laman’s with which provided postdated also them under Rule 212 and which Dr. Sachs’s report years, over three does not refer to the risk of cancer and appellant hemoptysis." states that ”denie[d] Neither of these features appellees undermines the fact that should have discerned from Dr. in limine motion ruling granting appellees’ The trial court’s 212, and a under Rule upheld proper as therefore cannot be granted.4 must new trial be -2- trial, asks, but a new not for a new

Appellant simply held that a damages. the issue of We have trial limited to granted be damages may to the issue of new trial limited determined, and “(1) liability fairly the issue of where [was] from (2) damages readily separable question [is] Oxendine, Reid v. Pa.Super. liability....” issue of v. P.B.I. Lambert (1980) 548, 556, (citing A.2d Industries, (1976)). These 366 A.2d 944 Pa.Super. was appellant here. The fact that are fulfilled conditions his to asbestos exposure a result of proximate harmed as estab “fairly was by appellees5 manufactured products is liability trial;6 appellees’ and the issue of lished” at cancer was question from the whether “readily separable” entitled to is appellant the adverse effects for which one of trial that the new damages. We therefore conclude receive damages.7 limited to the issue of should be that, appellant prepared testify even if report he Sachs’s that was cancer, likely lung to contract it in the yet he was more did not have exposed to asbestos. have been had he not been than he would future argument appellant’s that we not address 4. Given this conclusion need evidence. trial on the basis of after-discovered he is entitled to a new purposes 5. This characterization of appellant’s injury of determin- for liability comports decision in Staiano ing with our the issue of injury supra, plaintiff’s for statute of Corp., that a Johns-Manville resulting inhala- purposes comprises from the some harm limitations resulting development of each fibers and not the tion of asbestos disease. liability "vigorously the issue of is not a case in which 6. This jury that the to “indicate [ ] and the verdict so low as contested” the amount of compromised issue with probably ... Sadsbury Township, Pa.Su Dougherty awarded...” 357, 361, per. A.2d conclusion, argument appellant’s not address this we need 7. Given provided a basis for present evidence that appellees failed to jury its award of dam- could reduce court’s instruction that trial ages is due ”percent[age] [that] of his condition reflect the

-3- expected Since it at the new trial that we have concluded must be granted, seek appellant again will to recover punitive damages, we shall appellant’s address argument the trial court in refusing erred to submit punitive damages issue of In jury. support trial court’s ruling, appellees argue punitive damages (1) should not be recoverable: a “against mass marketer ____,” where its exposure multiple claims unlimited 29; Appellees (2) Brief for against corpora- successor tion; (3) of, at the where time of the acts complained “medical and scientific in strong disagree- authorities were ment” as to the exposure, harmfulness of such Brief Appellees at 25.8 note, however, cigarette Slip smoking____” op. at We that in jury may certain a circumstances reduce its award to reflect the percentage (1) pre-existing of harm attributable to: that condition of, Parker, aggravated by injury complained has been the Freer v. 411 346, (1963); 100, Engels, Pa. Pavorsky 192 A.2d 348 v. 410 Pa. A.2d 188 (1963); (SECOND) 433A(1)(b) 731 RESTATEMENT OF TORTS com § e, (2) (1965); plaintiff’s ments a & illustration 8 the and failure to mitigate damages taking by steps ordinarily prudent person that an Koch, 1, injury, would take his to minimize Bartunek v. 170 404 Pa. 200, (1961); Guthrie, (1925); A.2d 563 v. Potts 282 Pa. 127 A. 605 Scott, 278, Pa.Super. (1963); Downs v. 201 A.2d 908 191 Hilscher 237, (1960), 596, Ickinger, Pa.Super. 166 194 A.2d 678 170 aff’d (1961): (SECOND) 918(1) A.2d 595 RESTATEMENT OF TORTS § (1979), 433A(1)(b) (1965). comment f We also § note that the burden establishing by plaintiff of the harm capable that suffered the of apportionment the between harm caused the that defendant and plaintiff’s pre-existing attributable the either to to his condition or following injury mitigate damages failure rests on the dеfend Superior County, ant. See Johns-Manville Court Contra Costa of 465, 948, (1980); Cal.Rptr.

Cal.3d 612 P.2d RESTATEMENT (SECOND) g, OF 433A § § TORTS comment 433B Wade v. Cf. (1981) Pa.Super. S.J. Groves & Sons 424 A.2d 902 (Burden establishing apportioned among of that harm defend seeking apportionment). ants is on defendant appellees dispute propriety 8. The trial court notes that not did ”[t]he allowing punitive damages products liability of in a action ... in post-trial Slip op. motions at ....” 10. We nonetheless shall consider observed, appellees' argument punitive to us. As we have issue of Moreover, damages expected may be to arise new trial. we at the may uphold ruling ground, any the trial court’s not it on whether or argued. was Department See Baltimore & Ohio Co. v. Railroad Industry, Labor & Pa. A.2d 83 n. 643 n. 10 a) in Damages Awards Products Punitive

Liability Actions expressed by Judge on the views Appellees rely Richardson-Merrell, Inc., in Roginsky FRIENDLY (2d Cir.1967). presented in Among questions F.2d 832 under New York law an diversity action was whether punitive damages against Richardson-Merrell was award for its failure to warn consumers MER/29 was proper The court stated at the onset that the issue cataractogenic. one not this only monetary extreme terms to significance MER/29 of the hundreds of pending defendant view well, plaintiff longer and but from a actions as industry to all range, pharmaceutical the entire and users potential drugs. present at 838. Id. all [plaintiffs] punitive recovered calculating

After “[i]f in the here these run into damages amount awarded would millions____,” the “the having court confessed tens in perceiving how claims' for gravest difficulty multiplicity throughout such a of actions overkill,” can be so administered as to avoid nation fair emphasized practica- that “it seem-either or not] [does limit recoveries ble to to an indeterminate number of first-comers ....”9 Id. 839. The court further ob- if against punitive damages served insurance were available, the effect damages deterrent of such would be cost, blunted, simply for the insurance could greatly on consuming to the and “passed public,” cannot, is held they if as other courts and recom- by commentators, sufficiently mended most a egregious product error as to one can end the life of a business Powell, Wian, 35, 3, 346, J. v. n. A.2d n. Justin Inc. 40 318 349 3 Cases, (N.D.Cal. F.Supp. In re 9. Related Asbestos 818 822 566 Cf. 1983) ("[T]he corporation arguably assets of successor could suffer suits, depletion damages punitive such serious as a result that the corporation prоvide compensatory damages would be unable to plaintiffs recovery”). genuinely in future need of ... 362

concern has wrought good that much in past and future, might otherwise have continued to do so in the with innocent ‍​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​​‌‌​‌‌​‌​‌​​​‌​‌‌​​‌​​‌​‌‍many suffering stockholders extinction of their for a single management investments sin. Id. at 841.10

Despite permitting puni- its conclusion the recovery of tive “do than damages might good,” more harm court “New York acknowledged that cases afford no basis for ... predicting that the Court of Appeals adopt would a rule disallowing punitive damages____,” went on to conclude to support evidence insufficient an award Id. at 840-41. punitive damages.

We our acknowledge indebtedness thought- court’s concluded, however, ful opinion in Roginsky. We have the better is to permit punitive damages course in products actions, in what we follows shall our explain disagreement with Roginsky.11 addition, questioned achieving In court the need for 10. deterrence through punitive damages light of the fact that the before defendant already subject vigorously drug it was enforced federal food and requirements. at 840. Id. Appellees squarely brief state their that “other courts who havе unequivocally any faced the issue punitive have denied entitlement for marketers," damages against citing Empire mass deHaas v. Petroleum Co., (10th Cir.1970). Appellees 435 F.2d 1223 Brief at 29-30. This misstatement, First, is a for which we see no excuse. did not deHaas rather, "squarely presented; the issue” here it held that face[ ] damages private were not recoverable in securities actions under Rule Second, appellees have 10b-5. cited no decision in which the court accept Roginsky’s prohibit did invitation to awards products liability Finally, appellees actions. do not mention rejected following that invitation has been in the cases: v. Moran (6th Cir.1982); Corp., Carey Johns-Manville Sales 691 F.2d 811 Neal v. Ltd., (E.D.Pa.1982); F.Supp. Campus Canadian Mines 548 357 Sweater Co., Sportswear & F.Supp. Co. M.B. Kahn Construction 515 64 (D.S.C.1979), (4th Cir.1981); aff’d, Maxey 644 F.2d Freightliner 877 Corp., (N.D.Tex.1978), (5th F.Supp. 450 955 623 F.2d Cir. aff’d Sturm, Co., 1980); (Alaska 1979), Ruger & Day, Inc. v. 594 P.2d 38 894, denied, 391, (1981); cert. 454 U.S. S.Ct. L.Ed.2d 209 Froud 261, Ill.App.3d Corp., v. Celotex 63 Ill.Dec. 437 N.E.2d 910 Corp., Kan.App.2d District School No. v. Celotex Unified (1981); Gryc Dayton-Hudson Corp., 629 P.2d 196 N.W.2d denied, (Minn.), 727 (1980); cert. 449 U.S. 101 S.Ct. 66 L.Ed.2d 149 (Mo.App.1978); Rinker v. Ford Motor S.W.2d 655

363 (i) Damages Punitive Purpose of in order permitted punitive damages long courts have Our outrageous or reckless conduct.12 and deter punish to 35, (1970); A.2d Rabada, Pa.Super. 217 268 157 Focht 567, Co., Transрortation v. Philadelphia Evans Pa. (1965); 440 411 Montgomery, 212 A.2d Chambers v. (SEC- (1963) 339, (adopting 192 A.2d 355 RESTATEMENT § (1979)). OND) opposing puni- 908 Defendants OF TORTS damages products protested actions have liability tive damages prospect having pay compensatory of adequate to deter injury reputations of to their is and of marketing Supreme But as the Court practices. reckless observed, disingenuous: this argument Minnesota has damages argument compensatory injury This [that ignores deter reckless the fact reputation conduct] shown to have acted in reckless [the defendant] of economic in the disregard public purely reasons punitive damages A award serves deter past. [the in a acting respect manner with from similar defendant] Fur- it in the future. products to other manufactured thermore, potential compensatory damages since the of sales and did not serve reputation awards loss in the cannot past, deter defendant] defendant] [the [the adequate act as an argue now that these considerations deterrent. 741 727, 297 N.W.2d

Gryc Corp., Dayton-Hudson denied, (Minn.), 101 66 cert. U.S. S.Ct. (1980). L.Ed.2d Crookham, 290 Young ex rel. 618 P.2d

State Or. Co., Wangen v. Ford N.W.2d See Motor Wis.2d Co., Ltd., Cir.1983). (3d Acosta v. Motor 717 F.2d 828 abo Honda supрort Additional that have advanced in reasons been recovery damages fees, product attorney’s actions include the Campus Sportswear see & Co. v. M.B. Kahn Sweater Construction Owen, Co.,supra; Damages Liability Litigation, Punitive in Products enrichment, (1976) unjust recoupment and the MICH.L.REV. 1257 Sturm, ("[I]f Ruger Day, supra, Inc. v. P.2d at 47 & context, pot products liability could be awarded in the might gain advantage an unfair its more reckless manufacturer socially responsible competitors”); over Owen, supra. 364 Campus also & Sportswear

See Sweater Co. v. M.B. Kahn Co., 64, (D.S.C.1979), 515 107 F.Supp. Construction aff'd, (4th Cir.1981) (Threat F.2d of multiple punitive prudent awards “forces a manufacturer intent on maximiz ing to profits hesitate before marketing a known defective Sturm, or an product”); Co., ... untested Ruger & Inc. v. 38, (Alaska 1979) Day, 594 P.2d (“[T]he puni threat of tive serves a deterrence damages function ... in cases in it cheaper which would be for the to pay- manufacturer compensatory to who damages present those did claims defect”); then it would to remedy product’s [sic] Co., 285, v. Ford Wangen Motor 97 Wis.2d 294 N.W.2d (1980) (“[M]ere compensatory damages might be insufficient deter the defendant from further wrongdoing [; may cheaper pay think it damages or a forfei s]ome ture than change a business practice”). punitive

The conclusion damages are a deter needed against rent practices reckless business is also supported by the fact their availability can increase the number of punitive suits threat of brought: damages serves a “[T]he deterrence function in in cases which a product cause numerous minor injuries potential for which plaintiffs might Sturm, Co., decline sue ....” Ruger & [otherwise] supra, P.2d See also State ex rel. Young Crookham, Or. P.2d 1268 Wangen v. Ford Motor supra. noted,

As we have court Roginsky disputed the premise punitive that the threat of damages provides need- alia,13 ed deterrence on the ground, inter that if insurance against liability punitive available, damages were com- insure panies simply against could and pass risk this But, cost on to consumers. as the Supreme Court of observed, Wisconsin it has no by means self-evident that a manufacturer will choose to pass the cost of on insurance to consumers:

13. The court’s observation additional in deterrence the form of there alternatively provided not needed because through drug requirements, federal food and supra, seе note is of applicable course not here. logic a punitive not under economic “It does follow or in as a passed part on whole damage award will be not, It doing may may depending or cost of business. to its price standing competitors relation Ford’s upon It could lower own financial condition. mean and its com- for Ford. It could result stockholder profits profit margin about a lower because of plaints cars, thereby Ford damage spurring awards for unsafe design in the automo- on to exercise more care safe its greater scrutiny in a Ford’s It could result biles. stand- management design safety of its auto from exception All of the lower changes, these with of point. costs, place, if to take would higher they or were profits public Wangen the as whole.” Ford Motor benefit at Co., (quoting at 294 N.W.2d supra, Wis.2d (Memorandum Decision dat- Barager Ford Motor 15, 1977, Circuit for Eau September ed Court Claire County). is there to assume that the cost of

Nor reason considerable, liability coverage would not damage partic for a which have ularly company against punitive damages already Roginsky been awarded. See Richardson-Mer Inc., (Court at noted rell, supra, compen 378 F.2d that did not eradicate effect satory liability insurance deterrent awards, limited, “the compensatory explaining of that total ”); in future experience usually bad is reflected rates .... Owen, Punitive in Damages Liability Litiga Products tion, (1976)(“[Products 74 MICH.L.REV. liabili insurance is on a or ty retrospective written ‘loss-rated’ premiums in are basis which calculated on the primarily (footnotes omitted); past experience”) loss manufacturer’s Morris, Enterprise Liability and the Actuarial Process— 70 YALE L.J. Insignificance Foresight, The 560-74 of Thus, do with the agree Roginsky premise we not court’s against punitive damages that the of insurance availability the would eliminate deterrent effect of such awards question prob- The therefore whether the awards. becomes by Judge lems outlined FRIENDLY Roginsky outweigh the need for such deterrence.14

(ii) “Innocent Shareholders” Roginsky expressed The court the fear if insurance that available, against punitive damages liability not were innocent stockholders of “many [might] suffer extinction [ ] their investments for a single management sin.” Id. at 841. not agree We do of a has corporation shareholders disregard rights acted reckless consumers are of “innocent,” invariably for through their selection of a board directors, of have power shareholders to select course it management.15 Of well be that some of the shareholders who feel the sting of a award are “innocent” in they were not shareholders opponents availability punitive damages products of Some liability argued imposing liability regard actions have without awarding punitive damages, fault is with inconsistent which are However, predicated upon fault. the District as Court for the North- observed, inconsistency has ern District of Texas there is no between attempt compensation injuries an to make caused defective products widely by eliminating requirement available that the fault, plaintiff show that the manufacturer was at while at the same deterring products by imposition time distribution defective punitive damages: recovery exemplary damages The basis of for strict is They independent concepts. purpose different. compensation are The one purpose and the of the other is deterrence. The focus one is redistribution of and of loss thе of the focus other punishment____ they concepts, Because are different their differ- premises purposes point. ences in and are beside the Maxey Freightliner Corp., supra, F.Supp. 450 at 961. Mines, Ltd., Carey supra; See also Neal v. Canadian Drake v. Wham-O Co., 608, (E.D.Wis.1974) Manufacturing supra, F.Supp. 373 611 ("Where principal liability the claim on is based strict in tort and disregard plaintiffs there is an additional claim of of wanton the rights, simple plaintiff it supplemen is a matter to allow to make showing tary aggravating purpose proving of conduct for the of punitive damages”), grounds, entitlement overruled on other Wal Berkel, Inc., Sturm, (E.D.Wis.1976); F.Supp. 433 Ruger brun 384 & Co., Owen, Co., Day, Wangen supra; supra; Inc. v. v. Ford Motor Co., supra. But see Butcher v. F.Supp. Robertshaw Controls (D.Md.1981). power may The of shareholders to withdraw their investment 15. provide by manage- another means which shareholders can influence policies. ment of or were shareholders complained the acts the time of about those acts.16 way knowing no that time but had shareholders, puni- punishment objective As to such But the fact remains apply. awards cannot damage tive will have power ‍​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​​‌‌​‌‌​‌​‌​​​‌​‌‌​​‌​​‌​‌‍it who is the shareholders puni- imрosition and the management policies, influence deterrent, among a powerful will both damages provide tive against which the award is company shareholders companies, in other shareholders imposed among practices. business The against countenancing reckless corporate for shareholders accountable holding reason for Estates, Inc. v. misconduct was well-stated Doralee (2d Cir.1977), F.2d Cities Service Oil joined: FRIENDLY Judge which bear the cost of ultimately

It is true that stockholders to avert given authority who have but those been liability, given some incentive to damage should be environmental type way, is the traditional money’ do so. ‘Smart punitive here is a fair field for of modern tort represented damages..... Railway, Trunk 57 Me. v. Grand

See also Goddard (1869)(“When that it is not thoroughly it is understood agents, careless and or profitable employ indifferent servants, men their better will take reckless and insolent may sting who of a It also be the shareholders feel they at the damages "innocent” in that shareholders award are were complained about acts but acts of and knew those time of the cases, problem. In attempted to correct most such and failed however, could have withdrawn his before the shareholder investment the award was made: allowing punitive damages from because this We are not dissuaded ultimately shareholders. Punitive will be borne "innocent" cost investment____ accompanies are a Investors risk money they typically place where choose and withdraw it their they.wish. prospect ultimate The when encourage capital damages may their entrust investors responsible concerns.' most Corp., supra, 691 F.2d at 817. Moran v. Johns-Manville Sales Cal.App.3d Corp., See abo Pease Beech Aircraft 416, ("No why (1974) appears Cal.Rptr. 427 share- sufficient reason hostages captive inhuman be as innocent holders should seen corporate juggernaut”). management aof 368 Co., Wangen v. Ford Motor before”); not

places, and supra.

(iii) “Overkill” The District Court for the Northern of Cali District in was correct quite stating fornia intention of kill, is “to not sting, awards a defendant In re District Northern “Dalkon ....”17 of California IUD Products Liability Litigation, Shield” F.Supp. vacated on grounds, (N.D.Cal.1981), other 693 F.2d denied, cert. Cir.1982), (9th 459 U.S. 103 S.Ct. (1983). 74 L.Ed.2d 1015 But if the defendant’s conduct reckless, so and so injured many people, that the effect against thе damages awarded it is we are bankruptcy, to hard-pressed why understand defendant should not live required consequences with the of its actions. We agree reasoning Appeals with the the Illinois in Court Corp., Froud v. Celotex 654, 658, Ill.App.3d Ill.Dec. 261, 264, (1982): 437 N.E.2d do not believe that defendants should be relieved of

[W]e liability punitive damages because, for merely through conduct, outrageous they have managed seriously in- procedures proposed response 17. Numerous have been in to the fear expressed by (1) Judge Roginsky: of overkill FRIENDLY in should a excessive, punitive damages may grant request award be the court a remittitur, Mines, Ltd., Carey Neal v. supra; Campus for Canadian Co., Sportswear Sweater Sturm, v. supra; and Co. M.B. Kahn Construction Co., Co., Ruger Day, supra; & Inc. v. v. Rinker Ford Motor Crookham, supra, Young supra; Wangen State ex rel. v. v. Motor Ford Co., (2) supra; may jury may court instruct it consider the potential past punitive damages and defendant’s fashioning future award, punitive damages a School No. District Unified supra; Dayton-Hudson Corp., Gryc Corp., v. Celotex supra; State ex Crookham, Young supra; Wangen supra; rel. v. Ford Motor (SECOND) RESTATEMENT OF TORTS 908 comment e But § Richardson-Merrell, ("[W]hatev Roginsky suprа, see F.2d at 840 theory, er the result be in strict we think it somewhat unrealistic Mexico, expect judge, say jury a New to tell that their fellow get very by way punitive damages townsman should little because Roginsky Ostopowitz Toole in and New California Mrs. York bare, stripped cupboard assuming had even defendant would charge, expect jury want such a more still unrealistic that the that, didn’t, they judge would follow an or if such instruction rate”). going would reduce the award what below had become the persons. large a number of Such a rule would jure to continue their misconduct be- encourage wrongdoers cause, long enough large it kept up injure if a they escape liability of could people, they all number damages. punitive Crookham, Or. supra, v. Young ex rel.

See also State mali of the (“[Financial at 1271 interests 618 P.2d in the considered wrongdoer cious wanton must be and pro for the and future injured context of societal concern to say Nor it an answer that because society”). tection of is a de bankrupt awards punitive damages may a series of a deprived of fendant, plaintiffs future will be so that some from all should be foreclosed damages recovery,18 plaintiffs (bank the punitive damages. eventuality For recovering occur, plaintiffs in which case all ruptcy) might never of deprived option of the obtain have been needlessly would reck deterring and the ing punitive damages, objective forg needlessly have been marketing practices less would Co., supra, v. Ford Motor Wis.2d Wangen See one.19 at (“Ford 291-92, inequi at 454 would solve N.W.2d by damages plaintiffs to some awarding punitive ty argued possibility has that the that "first-comers” 18. While it been larger punitive damages plaintiffs later may far awards than receive seem, may considering inequitable earlier as it not be as recoveries, subsequent Wangen v. plaintiffs lay groundwork for still, Co., Owen, many supra, supra; courts have stressed Ford Motor single proceeding punitive assess a defendant’s the virtue of by plaintiffs, equitable an damages all followed division Inc., Richardson-Merrell, Roginsky supra; In re v. the total award. See dissenting), J., Cases, (8th Cir.) (HEANEY, Skywalk 680 F.2d 1175 Federal denied, U.S. 103 S.Ct. L.Ed.2d 383 rt. ce Co., Sportswear Co. Campus v. M.B. Kahn Construction Sweater supra; v. supra; Corp., School District No. 490 Froud Celotex Unified Crookham, supra. Young Corp., supra; State ex rel. Celotex Indeed, by noted envisionеd several courts have fears E.g., Campus Sports- Sweater and Roginsky court never materialized. Young supra; rel. State ex v. M.B. Kahn Construction wear Co. (“Hindsight Crookham, supra, Or. at 618 P.2d at 1271 demon- heavily Roginsky apprehension court was strates 1,500 cases, only juries award exaggerated. three did Of damages. majority cases were settled and the The vast by the Second Circuit did not come destruction feared financial omitted). (citations pass”) having this court eliminate all by having wrong-doer us allow the to go unpunished”). Al- though agree we with the court’s Roginsky observation that it is indeed a subsequent unfortunate when plaintiff unable to obtain relief because the defendant’s assets have verdicts, been exhausted prior this possibility is neither unique to products liability per- actions nor sufficient to suade us that in products defendants liability actions should enjoy a potential windfall while plaintiffs suffer the depri- right vation of a to which would they otherwise be entitled. We therefore conclude the problems that outlined by Judge FRIENDLY in do not Roginsky outweigh the needed punitive deterrent effect damages may provide, b) Punitive Damage Against Awards Corporations

Successor Appellees urge, however, we punitive hold that dam- ages may not be awarded for against Corp. Celotex the Co., conduct of Philip Carey Manufacturing its predecessor, the ground on that “there is no policy punish reason to an innocent party damages.” with punitive Brief for Appellees 28. n agree

We some may circumstances it make sense to permit only compensatory, punitive, and not dam ages to against be awarded corporation. a successor Sup for pose, example, that a successor corporation manufac products tured the same line of as were recklessly marketed shareholders, its by predecessor, neither but shared offi cers, directors, management nor personnel with common predecessor. might its It be that the successor would nevertheless be for liable for compensatory damages the injuries by predecessor, caused its it because was in a better spread the position cost of the loss than injured Dawejko consumers. See Jorgensen Steel Super. 15, 434 A.2d 106 Ramirez v. Amsted Indus tries, Inc., N.J. A.2d 811 But it would make any little if to impose punitive damages sense on the successor, for thе actors responsible predecessor’s for the shareholders, officers, reckless directors, and misconduct— punished neither be nor de management personnel —would conduct such an And if the from similar award. terred defect, no had remedied there would be successor not, deter, if it had it would be liable whereas conduct agree damages for its own actions. Thus we with punitive not extent —that it does follow from to this appellees against successor that compensatory of a award propriety if the prede also even damages may imposed, Cases, reckless. See In re Related Asbestos cessor was (“The (N.D.Cal.1983) under justifications at 822 F.Supp. 818 damages articu compensatory lying successor v. Alad 19 Cal.3d 560 P.2d Ray [Corp., lated in (1977)] present are not Cal.Rptr. simply [when against corporation]”). successor sought are however, believe, in some a suc We circumstances its cessor be held accountable for recklessness of should goals This will be so when the that underlie predecessor. imposition punitive damages punishment and deter — regard, be advanced. In this we draw rence —will formulations of the rule permitting from the various the is a liability of successor when successor imposition generally See Ja of predecessor. mere “continuation” its Service, Inc., v. 176 cobs Lakewood Aircraft 512 F.Supp. v. Korzetz Amsted Indus cases); (E.D.Pa.1981) (collecting tries, Inc., v. (E.D.Mich.1979); Shannon F.Supp. 472 136 Co., (W.D.Mich.1974); 797 Langston Samuel F.Supp. 379 Co., v. Joy Manufacturing Kloberdanz F.Supp. Corp., Fare Well N.J.Super. Wilson

(D.Colo.1968); Casualty Turner v. Bituminous A.2d 458 406, 244 We believe that 397 Mich. N.W.2d identity accompa is not legal change corporate when a in the by changes identity predecessor’s nied major directors, officers, shareholders, management person against the succes nel, punitive damages of imposition the predecessor may conduct of the for the reckless sor the of and deter advancing goals punishment proper as the predecessor’s the for responsible rence. For actors from and also deterred punished conduct will be reckless similar in the conduct future. The fact that the successor product recklessly does not continue the by line marketed defect, the or cures predecessor, will not necessarily circumstance, preclude punitive damages. For in either fact remains that those who control of are in the successor have a act in willingness disregard reckless demonstrated of the rights others.20 public That is now from safe being injured product x does mean it is not safe from the next reckless business practice may these actors undertake if not deterred.21 therefore punitive damages

We hold that are recov a against erable successor when the corporation plaintiff has degree identity shown such the successor with predecessor its as justify the conclusion that re those sponsible predecessor for the reckless conduct of will be punished, and the successor will be deterred from similar conduct.22 It company does not follow that because a has it remedied a defect

20. longer willing recklessly. is no to act See Moran v. Johns-Manville (Punitive Corp., supra damages imposed Sales for reckless failure to inhalation, dangers despite warn of associated with asbestos fact Mines, warnings subsequently given); Carey were Neal Canadian (same). supra Drayton Corp., F.Supp. see But Chemical Jiffee (N.D.Ohio 1975), (6th aff’d, Cir.1978), disapproved 591 F.2d 352 supra. Corp., in Moran v. Johns-Manville Sales may respect, corporation it In this be noted that the fact that a has 21. defect, e.g., by, curing discontinued its reckless conduct no imposition punitive damages. defense to the See Moran v. Johns- Mines, Ltd., Corp., supra supra. Carey Manville Sales Neal v. Canadian why corporation We see no a successor should reason be absolved of punitive damages of conduct because not sufficient to predecessor corporation. absolve a ' attempt holding exactly, more We do not to state our for we cannot possible configurations of facts We foresee all of the arise. however, note, quality, quantity, may play do as well as a role analysis. example, might appropriate it For to award shareholders, officers, directors, damages lesser number where a management personnel continued the successor but who those directly responsible egregious prede- did were cessor, for the conduct of the larger appropriate nonculpable but not where a number of Moe v. individuals continued in the successor. See Co., Transamerica Titlе (1971), Cal.App.3d Cal.Rptr. re construed in In Respectable c) Awards Where Damages Punitive is Divided Opinion Medical court’s that the trial argued have also Appellees to the jury the issue of to submit refusal to exposure appellant’s at the time of because proper strong authorities were asbestos, and scientific “medical exposure. of such to the harmfulness as disagreement” ruling its trial court justified at 25. The Appellees Brief for there was no “We find that Thus it said: on this basis. defendants; fully by realized that the risk was evidence risk appreciate did not community even the scientific at 34. Slip op. involved.” the record no as to whether express opinion we

Although commu- that “the scientific finding the trial court’s supports involved,” disagree we do the risk appreciate did not nity as to the among experts unanimity that premise with the exposure to insulation workers asbestos posed hazards recklessly acted finding appellees a that a to prerequisite be caused might of the health hazards failing to warn believe, contrary, We to asbestos. by exposure respectable were aware of showing appellees evidence to asbestos exposure to the effect that authority medical hazards, yet poten- failed warn serious health posed to warrant sub- might be sufficient accordingly, tial users if even punitive damages jury, the issue of mission of were simul- showing appellees also evidence there was to the con- opinion medical respectable aware of taneously trary. In with decided cases. Moran v. comports

This view supra, Appeals the Court Corp., Sales Johns-Manville award, upheld punitive damages a for the Sixth Circuit examination of ... witnesses “[cjross the fact that despite was aware of risks testified that Johns-Manville [who began place warning it insulation workers well before to show that causal connections products] on tended labels products of asbestos were not cancer and use lung between Cases, degree supra. issue of sufficient The Related Asbestos case-by-case basis. identity on is one that must be resolved established with any certainty before Johns-Manville began using warning labels.” Id. at 814. See also Evans v. Philadelphia Transportation Co., 212 A.2d (1965) (Although defendant could not tell with certainty whether the object he saw lying оn the train tracks awas person, his failure precaution to take against possibility that object a person by stopping reckless). the train was In Moran the court held that despite evidence that medical opinion regarding the effects of exposure asbestos was not unanimous, jury could properly have found on the basis appellant’s awareness of opinion medical that asbestos exposure could cause “chronic debilitating diseases,” and that ‍​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​​‌‌​‌‌​‌​‌​​​‌​‌‌​​‌​​‌​‌‍when combined with the fact that “the placement of warning labels on products” insulation would not have been “onerous,” appellant’s “indifference to consumers’ risks ” ‘flagrant.’ Id. at 816. Also to be [had noted is been] 908(2) Section (SECOND) RESTATEMENT OF (1979), TORTS provides: which Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference rights In others. assessing punitive damages the trier of fact can properly consider the character act, of the defendant’s the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defend- ant.

The failure to prеcautions take urged by respectable medi- cal authority, even when medical opinion unanimous, is not may be evidence of “reckless indifference to the rights of others,” pertinent to appraisal an of “the character of the defendant’s act.”

Accordingly, we hold that the introduction on remand of evidence that respectable medical authority was divided on upon effects insulation workers of exposure asbestos the time of appellant’s exposure will not necessarily pre- clude the of the issue of punitive submission damages to the jury.

-4- erred in argues that the trial court also Appellant eight to nine hundred Industrial some refusing permit of articles the connec abstracts about Health Foundation and asbestosis to be either exposure tion between asbestos The court ruled that into evidence. or read introduced confus would have been of the file abstracts “admission however, note, at 30. We Slip op. ing jury.” to the Brislin, of Informa the Director also ruled that Jane court Foundation, could of the Industrial Health tional Services abstracts, according year to the number testify disseminated, the number in which the abstracts were asso there health risks indicated that were articles which asbestos, were routine and that the abstracts ciated with [T., Foundation: distributed to members ly I, p. Vol. 225]

Slip op. at 28. testify permitted that Brislin was Appellant concedes of the Founda- the defendants were members that'three of purpose giving at For Appellant tion. Brief for remand, ruling we hold that the trial court’s guidance on its discretion to exclude exercise of broad proper was evidence, confuse the likely jury merely cumulative delay. Sportswear, in undue See Whistler Inc. result Rullo, 433 A.2d 40 Pa.Super. 289 McCORMICK § 1972); WIGMORE, (2d ed. 1 & EVIDENCE 185 ON §§ 29a, (Chadbourn rev. EVIDENCE WIGMORE ON 1979).

-5- Inc., Engineering, argues Cross-appellant, Combustion its motion for denying judgment trial court erred that the n.o.v. an order reviewing deny

It is well-settled “[i]n evidence, n.o.v., together view the we must ing judgment therefrom, in light most inferences with all reasonable verdict winner.” McCloskey as the appellee favorable to 1, 5, Pa.Super. 436 A.2d New York Insurance Life Redevelopment Atkins v. also Urban (1981). See 414 A.2d 100 Pittsburgh, Authority of in 1953 and on another occasion testified that Appellant Engineering pipe covering he to 1957 used Combustion prior addition, discloses that cement. In the record block and insulating pri block Engineering manufactured Combustion to 1953. N.T. vol. insulating prior cement or 335; 537-38; 103-04. This evidence vol. at vol. 7 at cross-appel denial of to warrant the trial court’s ample judgment lant’s motion for n.o.v.23 -6- has also that the trial court Cross-appellant argued motion for a di granting Raybestos-Manhattan’s erred argues cross-ap rected Raybestos-Manhattan verdict. failing to argument by object has waived this pellant Raybestos’ motion. that none of the of the record discloses

Our review either after the motion for a directed objected, defendants 168-97, made, or after it was N.T. vol. 8 at was verdict 9, 197-268, 10.24 It is well-set- granted, N.T. vol. 8 at vols. a trial court objection ruling tled that an to will be if in timely for review made a preserved appellate only 482, Wiegand Wiegand, 461 Pa. 337 A.2d 256 fashion. Dilliplaine Lehigh Valley Trust 457 Pa. (1974). The reason for this rule is 322 A.2d appellant’s cross-appel- counsel read into the record 23. The fact response interrogatory, cross-appellant lant’s to an to the effect that products containing begin did not to manufacture asbestos or asbestos components does not undermine the further fact that other until provided cross-apрellant’s of which was also in re- evidence—much interrogatories permits appellant sponses to the inference that — products by cross-appellant prior exposed asbestos manufactured to to 1957, indeed, early as as 1953. Unarco, by 24. A statement counsel for which has been severed from appeal, this that he wanted to make sure the court’s dismissal of right appeal appellees' his to cross-claims would not forfeit dis- to,” Raybestos (emphasis N.T. vol. at missal of [he] want[ed] "if context, added), ruling was made the court’s and in a different after objected was not sufficient alert the court that Unarco and ruling. to a at trial denies interpose timely objection to “[fjailure to the issue and argument the chance hear on the trial court here, Where, an the error.” as to correct opportunity an made until a for a directed verdict is not to motion objection for timely, not objection is discharged, has been jury of the defendant’s then it is too late for issue by an at that permit objection To jury. submitted efficient orderly with “the and thus be at odds stage would 258-59, Id., resources." judicial of ... use argu- that cross-appellant’s at 116. therefore hold A.2d We ment is waived. and Martin: we reverse appeal Joseph Edward

On the damages, for new trial limited the issue remand a opinion. consistent with this Inc.: we Engineering, cross-appeal Combustion

On affirm.

CAVANAUGH,J., dissenting opin- concurring files a and ion. in

WIEAND, J., dissenting opinion, concurring files HESTER, J., joins. which

CAVANAUGH, concurring dissenting: Judge, part for opinion except majority I concur with the forth For the reasons set punitive damages. relating opinion Rich- Judge Friendly’s Roginsky IV of Part Cir.1967) (2d ardson-Merrell, F.2d I would hold punitive damages under right no to seek there should be compen- where claim made Pennsylvania law cases caused or death injury as a result satory damages products. to asbestos exposure is problem related disease enormity

The asbestos 1982, were over one As of there scope. one of national dam- seek fifty claims which eight hundred thousand in the Phila- product exposure of asbestos as result ages being new cases were Pleas and Court of Common delphia month. The number seventy-five per filed the rate cases nationwide over sixteen were thousand.1 It has been estimated the United States Department of Labor that thousands of persons will become disabled or die from asbestos related disease each well year until into the next century. The is problem compounded by fact that the physical impairment resulting from exposure asbestos often does not exhibit twenty itself until thirty years after the exposure.2 As a claims, result of implicated these several defendants have declared bankruptcy and others have ex- hausted their insurance liability coverage.

Faced complex problem with this social and in the ab- legislative sence of solutions, or executive the courts cannot simply react to the problem the of its isolation traditional case-by-case methodology. the judges While of our state courts are the midst of examining problem,3 this our decisional law in the meantime cannot ignore the economic impact of current To permit declarations. award damages is, my opinion, counterproductive goal best just providing reparations are most fairly to all awarded of the present and future claimants who can compensable demonstrate or disease. The injury right to pursue an award of punitive damages in these eаses will clog further the trial courts since we cannot suppose that will defendants sum voluntarily pay a as punitive damages, nor could plaintiffs who, we blame injured right once the punitive damages established, insist on a trial in order to Thus, assert their claim. one result may be more trials and fewer settlements. More importantly, faced with evidence industry’s that the resources not be sufficient to satis- fy just claims for compensatory damages by all who have or disease, will suffer or injury it seems an unfair allocation of limited resources to those who first permit find their way Pittsburgh Corning Corp. Bradley, 1. See 453 A.2d Ibid., 499 Pa. at A.2d at 314. Supreme 3. Justice Roberts of our Court is chair of a committee sponsored by the National Center State Courts which is denomi- Working Group Litigation.” nated the "Judicial on Asbestos a monetary prize to crowded turnstiles obtain the through may find the down the line who of others to detriment the dry. compensation of well

WIEAND, concurring dissenting: Judge, that the trial court erred when majority I with agree of and that this érror any it evidence cancer excluded a new requires trial. per

I that there is no se rule which agreement am also in a damages precludes recovery punitive products of Annot., In this case. See: 13 A.L.R.4th rather, held, It case, trial did not hold otherwise. court of insufficient submit issue the evidence was punitive damages jury. to the punitive damages remedy. of is an extreme

An award civil, claim is punitive damages a for Although nominally a punish but compensate plaintiff not intended outrageous him from flagrant and deter defendant In right puni- order to establish a recover misconduct. a has plaintiff prove a must defendant damages, tive is, conduct, “that ... done outrageous of acts guilty been indifference to the with a motive or with reckless bad Montgomery, of others.” interests Chambers 339, 344, (1963), A.2d Restatement of quoting § 908(1) imposing The consequences Torts comment b. damages, majority recognizes, as the are serious. stigma an than which implied greater include They compensation an and which is similar attaches to award of Moreover, to, as, the same a criminal conviction. if not inherent in award of a sub- there is an error, adequate guidelines there are no stantial risk wholly upon almost the discre- dependent and the award limited any way who are not inexperienced jurors tion of they punitive damages which respect with аmount can assess. “ dam- imposing punitive consequences

Because ‘the ...[,] ‘particu- are serious’ ages in a case like so present Honda is warranted.” Acosta v. scrutiny’ careful larly (3d Cir.1983), Motor 717 F.2d quoting Rogin- Richardson-Merrell, Inc., sky (2d 378 F.2d Cir.1967). Therefore, I would hold that in an action where liability is predicated upon Section 402A of the Restatement (Second) Torts, of a plaintiff seeking punitive damages must prove the requisite “outrageous” conduct of a defendant evidence that convincing.1 clear ‍​​‌​‌​​​​​‌​​​‌​‌‌‌‌​‌​​‌‌​‌‌​‌​‌​​​‌​‌‌​​‌​​‌​‌‍and See: Acosta Co., Honda supra; Motor Wangen v. Motor Ford Wis.2d (1980). Wheeler, N.W.2d 437 See also: “The Constitutional for Reforming Case Punitive Damages Procedures,” Va.L.Rev. 296-298

Applying this case, standard to the evidence in the instant it seems plaintiff clear that to produce failed evidence sufficient to show that any defendants had been outrageous guilty Therefore, conduct. the trial court properly refused to submit the issue the jury. reasons, the foregoing

For I would limit the award new trial of compensatory issue damages only. J., HESTER, joins.

469 A.2d 672 Pennsylvania, Appellant, COMMONWEALTH Richard K. WELLS. Superior Pennsylvania. Court of May

Submitted 1982. Filed Dec. 1983. proof The use of likely compel a different standard of will most jury permitted bifurcation. A would be to hear and decide damage only issues after it had rendered on a verdict damages. compensatory

Case Details

Case Name: Martin v. Johns-Manville Corp.

Court Name: Supreme Court of Pennsylvania

Date Published: Apr 2, 1984

Citation: 469 A.2d 655

Docket Number: 1323 Pgh. 1982; 1322 Pgh. 1982

Court Abbreviation: Pa.