Martin v. Johns-Manville Corp.

A.2d MARTIN, Appellee Joseph Edward

v. Corporation, CORPORATION, Pittsburgh Corning JOHNS-MANVILLE -Corning Corporation, Eagle-Picher Fiberglas Owens Insulation, Inc., Industries, Inc., Corpo Forty-Eight Celotex Industries, ration, Inc., Corporation, Unarco Combus Keene Engineering, Raybestos-Manhattan, Inc. and Inc. tion

v. SUPPLIES, FURNACE INC. INDUSTRIAL OWENS-ILLINOIS, INC. CORPORATION,

Appeal of FIBERGLAS OWENS-CORNING Insulation, Inc., Industries, Inc., Forty-Eight Eagle-Picher Engineering, Corporation, Combustion Inc. and Ow Celotex ens-Illinois, Inc.

Supreme Pennsylvania. Court of

Argued Sept. 28, 1985. Decided June Garrett & Pitts- Egler, Anstandig, Riley, Patrick R. Riley, burgh, appellants. for Kirshner, Pittsburgh, Eagle-Picher for Indus-

Charles tries, Inc. Insulation, Inc. Tosh, Beaver, Forty-eight for

James C. McAllister, Pittsburgh, Lewis and Kathleen S. Richard G. Corp. for Celotex Caroselli, Pittsburgh, for Mar- Joseph R. Edward

William tin. Paris, Pittsburgh, Pittsburgh Corning Corp.

Gerald C. NIX, C.J., FLAHERTY, Before McDERMOTT, HUTCHINSON, and PAPADAKOS, ZAPPALA JJ. THE

OPINION ANNOUNCING JUDGMENT OF THE COURT HUTCHINSON, Justice.

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

On this record Superior and, we reverse therefore, Court affirm the Court Common Pleas Allegheny County. On the of appellee’s exclusion medical evidence Superior Court to failed see a subtle important but distinction be- judge 1. The trial directed a Raybestos-Manhattan, verdict in favor of Pittsburgh addition, Corning Inc. and Corporation. Superior Court Unarco, severed Corporation defendants Johns-Manville and Inc. proceeding apparently from the before it because those defendants recently petitions reorganization had filed for Chapter under 11 of the Bankruptcy Therefore, Reform Act of 11 U.S.C. seq. 1101 et § defendants, these caption, while the parties listed in are not to this appeal. Corporation appealed Superior Keene not has Court’s order awarding appellee damages. a new trial on Engineering Defendant cross-appeal Combustion had filed a chal- lenging grant judgment trial court’s refusal to its motion for n.o.v. to and strike the verdict Raybestos- the court had directed in favor of Manhattan, Superior Inc. Court affirmed the trial court on these Engineering issues and challenged ruling Combustion has not on appeal. this dam- present definite to show sufficiently evidence tween risk of evidence relevant to show a substantial age and this record damage. punitive damages On additional future to necessary conduct outrageous does not demonstrate impose a to them. permit jury by plaintiff-ap- initiated liability action was products

This complaint a Martin filed Edward who pellee Joseph seeking compensatory trespass August on asbestosis and related diseases which damages for punitive working prod- a result of with developed he he as claimed defendant-appel- manufactured containing ucts asbestos lants.4 favor, awarding in Martin’s returned verdict jury stated, As trial $67,000 damages. compensatory

him Martin had present- that the evidence court had determined dam- to his claim ed was insufficient establish and, to submit that claim to the accordingly, refused ages initial motion denied both Martin’s subsequently It jury. supplemental motion based for a new trial and his appealed Superior Martin after-discovered evidence. reversed and re- That court grounds. Court on several for a new trial limited to to Common Pleas manded case stated, judge that the trial erred both holding, as expert testimony offered establish excluding significantly increased Martin’s asbestos to refusing and in submit lung his cancer developing risk of claim to the jury. Martin’s punitive rulings products manu- Superior In Court’s appealing (1) excluded judge properly that: the trial argue facturers Mar- regarding the likelihood of proposed expert testimony cancer; (2) assuming, arguendo, contracting lung tin’s excluded, a trial should new improperly such evidence was August on 3. Martin died liability recovery under the included strict theories of

4. Martin’s 402A, (Second) negligence, gross negligence § of Torts Restatement failure to for the manufacturers’ and wanton misconduct and willful warn insulation with potential applicators health hazards associated of the Only theory containing the 402A went to the products asbestos. jury. to compensatory damages not limited be issues but should issues; (3) relitigation liability punitive include of the dam- ages plaintiffs should be unavailable to who compensa- seek injuries tion for to allegedly prod- attributable containing ucts on liability asbestos a “strict” based theory (4) case, 402A principles; Restatement any trial ruled judge correctly present Martin failed to sufficient support evidence to his damages claim. In addi- tion, Corporation Celotex contends that may this Court not consider information contained appellee’s brief which was not presented Superior Court, either trial on the may issue whether Celotex be liable any punitive damages imposed predecessor, because of conduct of its Philip Carey Manufacturing Company. At the outset we are mindful the circumscribed scope appellate to a applicable review trial court’s order granting or denying new trial. As we have frequently stated, the grant or denial of a new trial will not be appeal reversed on absent either an error of law which case, controlled the outcome of the Anzelone v. Jesperson, 28, 30, (1969); 436 Pa. 258 A.2d Allison v. Snelling Inc., 519, 521, & 425 Pa. Snelling, (1967), 229 A.2d or a palpable abuse of discretion where the ruling turns on weight evidence, of the Eidemiller, Lobozzo Adam Inc., 360, 367-68, 437 Pa. (1970). 263 A.2d presented issues here must be considered within that nar scope row of review.

Appellants first challenge Superior Court’s determination judge the trial improperly granted appellants’ motion any limine exclude response references to cancer. to the motion in appellee limine offered the proposed testimony report Murray and written Dr. Sachs. The report, which had previously been furnished to appel- lants, sets forth diagnosis Dr. following Sachs’s exami- his nation appellee in 1978. The doctor concluded that appellee suffered from “chronic lung obstructive disease with asbestosis.” He added he could not exclude the possibility bronchogenic of cancer) carcinoma (lung particu- 164 (blood-spitting hempotysis recent light appellee’s

larly possi- for this should be studied appellee and that episode) “R.R.”) 11a- (hereafter at Record bility. See Reproduced 12a. the trial questioning judge, appellee’s response

In to that: attorney stated on that based testimony Dr. Sachs’s

I it will be believe had, has on the symptoma- based [appellee] that exposure has, that there may, [hemoptysis] [appellee] that tology now, is detecta- effect, exists not be cancer which risk. certainly most at but he is ble at R.R. 36a. motion, the court concluded trial sustaining appellants’ establish inadequate offer was proof

that above bronchogenic developing risked that he claim appellee’s his to asbestos. The exposure a result of carcinoma as prepared to that should have been explained appellee court with the risk of cancer associated confirming evidence offer epidemiological analyses statistical exposure by asbestos 5, op. Pleas slip risk. Common in personal injury a plaintiff It is well-settled a claim testimony support may expert introduce action past harm a result of a future as that he suffer certain may Company, Railroad 403 Pennsylvania v. injury. Boyle v. Brody, 865, (1961); 220 Walsh 614, 618, 170 A.2d 867 Pa. Schwegel 293, 666, (1971); 286 A.2d Pa.Superior Ct. 280, 287, 228 A.2d v. Goldberg, Pa.Superior Ct. question the issue in

(1967). It likewise true that where is express required cannot be prognosis, “a doctor is one in a required causation the definiteness opinion his with Company, Pennsylvania Railroad Boyle v. question.” 170 A.2d at 867. See also Stevenson 403 Pa. at Inc., 372 Pa. 157, 165, Sports Enterprises, & Pennsylvania (1952). A.2d appel testimony, based proposed Dr. Sachs’s his with one together to asbestos lee’s history have had cancer at may blood-spitting episode, appellee

165 him, the time he examined is not of the fact for probative i.e., offered, appellee it that says appellee now was contracting substantially faced increased risk cancer as Accordingly, a result of his to asbestos.5 Dr. Sachs’s and the information proposed testimony contained report in his are not relevant to their offered purpose,6 and in the trial court not abuse its discretion excluding did both.7 challenge

Appellants Superior rulings next Court’s plaintiffs punitive damages products seek in may liability predicated that, actions on a solely liability strict theory and case, in particular this the evidence was sufficient to war- rant of appellee’s punitive damages submission claim to the jury. Our Court has never decided the of whether question punitive damages are grounded available in an action report if testimony Even Dr. Sachs's and in-court be could con- prove as appellee sidered ly offered and relevant to "is most certain- risk,’’ predicate given at speculative their factual is not and so is exacting probabilities. even under the less standards for future possibility of future harm caused a tortious act is not admissible in 314, 320, 841, Eglin, (1952). evidence. Lorch v. Pa. 369 85 A.2d 843-44 jury may damages speculation A not conjec- award on the basis of Id.; 173, Hill, 166, 289, (1934). ture. Rice v. Pa. 315 172 A. 291-92 Instead, plaintiff present competent must evidence from which the jury reasonably can degree determine the to which future conse- and, quences present injury probable accordingly, of a are what the Hill, any damages amount of supra; award should v. be. Rice Baccare Mennella, 53, 55, 806, Pa.Superior (1976). v. 246 Ct. 369 A.2d Co., 618, Compare Boyle Pennsylvania v. Railroad 403 Pa. at 170 A.2d 867; Goldberg, 286-87, Schwegel Pa.Superior Ct. at 228 A.2d at 408-09. 6. This medical evidence is relevant to the issue of whether cancer existed, incompetent purpose. spoke but for that Dr. Sachs on that possibility; express issue of a opinion in terms he did not an he held professional certainty. with reasonable Hospi SeeJones v. Montefiore 417, tal, 410, 920, (1981) (“medical 494 Pa. opinion 431 A.2d need demonstrate, only degree certainty, awith reasonable of medical sustained”) actually a defendant's conduct increased the risk of harm (emphasis original); Inouye, Gradel v. 491 Pa. 421 A.2d (1980); Bashline, 256, 267-68, Hamil v. 481 Pa. 392 A.2d (1978). 1285-86 holdings appellants' argument, 7. Given our we do not reach next trial, namely, relitigate they that if we permitted order a new should be liability compensatory damages issues as well as the claims. by a defective allegedly caused injuries liability strict presented evidence here However, quality product. for us to consider inappropriate unnecessary it makes legal theory or the arguments policy either the broad against rule for or a blanket present supporting parties involving litigation mass- allowance products.8 marketed commercial applicator an industrial and

Martin worked as manu- thermal insulation materials “asbestos-containing” January, from 1939 1978. defendants until by factured the He an manufacturer. bases He worked for asbestos never none the on the fact that of punitive damages his claim con- warnings on their placed products defendant-appellants ailments associated with any pulmonary risk of cerning claims, though, he the 1964 even asbestos before knew that inhalation of asbestos caused profession medical the 1930’s. early as as asbestosis damages appellee arguing propriety punitive

In witnesses, of two Jerome testimony on the principally relies in and Wiot, M.D., specializing radiology, a F. physician in Mancuso, M.D., and occu- physician expert F. a Thomas health. pational to his testimony pertained Dr. evalua-

The bulk of Wiot’s Dr. x-rays. on medical condition based appellee’s tion of that, changes lungs in the fibrotic generally, testified Wiot damages, imposed on are Appellants which claim that conduct, incompatible outrageous are with defendant’s account of the liability only products premised on strict in which a action product and liability condition of the defendant’s focus is on the 38, Sturm, See, e.g., Ruger Day, & Co. v. 594 P.2d is irrelevant. "fault" denied, reh., (1980), 1979), (Alaska cert. 615 P.2d 621 45 modified 391, (1981). 209 102 S.Ct. 70 L.Ed.2d 454 U.S. addition, policy support of appellants various reasons in advance punitive damages inappropriate in the context position are that their See, liability litigation. e.g., Roginsky v. products of mass-marketed Surrick, Cir.1967); Richardson-Merrell, Inc., (2d Punitive 378 F.2d Pennsylvania: Litigation or Damages in Punishment Asbestos (1983). Annihilation?, Appellee counters with 87 Dick.L.Rev. See, contrary e.g., arguments support view. Fischer policy 127-129, N.J.Super. 472 A.2d Corp., 193 v. Johns-Manville Owen, Liability Litigation, (1984); Damages in Products Punitive (1976). Mich.L.Rev. 1257 due to inhalation asbestos fibers were first in discussed in medical literature the 1930’s and that manifesta- pleural beginning were in in journals tions covered the 1940’s. 225a. R.R. at

Dr. Wiot further testified he read a 1946 article by authored Walter Fleischer and reported others which results of an epidemiological survey workers who install- pipe-covering containing ships ed asbestos on and which pipe-covering occupation. concluded that is not a dangerous R.R. at 281a. Dr. Wiot also stated he attended talk given Dr. Irving Selikoff 1964 in which Selikoff his discussed then-recent study insulation workers which in fact, found that face they, health risks from asbestos exposure. Dr. Wiot recalled Dr. Selikoff termed his study kind, first “definitive” one of its which Dr. Wiot interpreted to mean the first important study insulation workers. R.R. at 282a-284a. Dr.

Finally, Wiot testified that he did not if know the subject of warnings, connection with products, insulation appeared any 284a, literature before R.R. at had, what knowledge the industry generally, asbestos time, any regarding the impact of asbestos exposure health. R.R. at 290a. Mancuso,

Dr. testimony on whose appellee relies most heavily, stated that he served aas consultant Philip to Carey Manufacturing Celotex, Company, predecessor October, October, from 1962 to to help the Company See develop plant a company-wide program. health R.R. at 63a, 67a-68a, that, 78a.9 Dr. during Mancuso testified consultant, twelve months he was a he provide continued to Company with information to pertaining the hazards associated with exposure asbestos the form oral and reports written and scientific covering literature that sub- including Dr. ject, relating Selikoff s to insulation article 78a-79a, workers. R.R. 106a, at 115a. for, consulting Dr. Mancuso never services or was other- rendered employed any by, appellants. wise corporate of the other October, officials of Mancuso testified that

Dr. among advised him of cases asbestosis Philip Carey 86a, learned subsequently R.R. and that he at employees, employees of four 1957 and 1962 death that between He further testified R.R. at 97a. asbestos-related. was May officials dated Philip Carey that in a letter (1) a nation- recommended that the establish Company he the hazards focusing on industry program research wide asbestos, 102a; (2) at issue practice with R.R. associated developed to be outlining handling procedures manual safe 103a; uses, R.R. at consumer analyses on the basis manufacturing (3) all new develop control measures for R.R. at 104a. See product consumer uses. processes and 110a-113a. also report September that in a dated

Dr. Mancuso testified executives specifically Philip Carey 1963 he advised and that present are asbestos exists health risks wherever boilermakers, workers, pipe-fitters and including asbestos addition, Dr. too, 116a. In Mancuso were at risk. R.R. at emphasized Philip Carey personnel that he stated to asbestos but have minimal insulation workers He he had face R.R. at 150a. said that nonetheless risks. Carey of what information personal knowledge Philip no took Company or whether purchasers sent ever he from their after products to eliminate asbestos measures R.R. 155a. serving as their consultant. stopped he familiar with the Dr. Mancuso testified that is disagrees with its conclusions. but that he Report Fleischer Moreover, reports he conceded that no R.R. at 158a-159a. asbesto- indicating developing that insulation workers risk or 1963. R.R. at 162a. Never- sis available until 1962 were theless, had such risks been established he contended that epidemiolgoical then clinical observations long .by before who had devel- of insulation workers physicians made Dr. Mancuso testi- Finally, R.R. at 169a. asbestosis. oped the no he served on during period fied that at time did the Committee Labelling of the ACGIH10 Committee Hygienists. of Industrial American Conference Governmental

169 labelling make any concerning recommendations as- products. bestos R.R. at 188a. Brislin,

Appellee also called Jane Director of Information- Foundation, al Services the Industrial Health who testi- medical regarding fied abstracts of articles which are rou- tinely disseminated the Foundation to compa- member nies. Brislin’s summary, testimony established sev- were, been, eral appellants had members of the Founda- tion, 573a-576a, 594a-595a, and, R.R. during periods of membership, to, received, had access information con- cerning various health risks with associated expo- asbestos sure.

In Pennsylvania, punitive the function of dam Swank, deter, see v. ages 158, is to Thompson 159, 317 Pa. 211, (1934), 176 A. 211 and punish, see Voltz v. General Acceptance Motors Corp., 332 141, 145, 697, Pa. 2 A.2d 698 (1938), egregious Desmond, behavior. See Cochetti v. 572 102, (3d F.2d Cir.1978) law); (applying Pennsylvania Liscio, Esmond 209 Pa.Superior Ct. 224 A.2d (1966); (Second) Restatement 908(1) Torts § (1979). Consistent with theory, preclude we insurance Delisio, against Reimer v. them. 662, 666, 501 Pa. (1983) A.2d (concurring and dissenting opinion by Hutchinson, J.); Liscio, Edmond v. Pa.Superior Ct. at 212, 224 A.2d at 799. Punitive are appropriate to punish only and, and deter extreme behavior even rare instances are they justified, are subject judicial strict controls. See discussion, at 170-175. infra

As a general guide in this area Pennsylvania recognizes the principles 908(2) set forth in Section of the (Second): Restatement Torts

(2) Punitive damages be awarded for may conduct that is outrageous, because of the evil defendant’s motive or his reckless rights indifference to the of others. In assessing damages, trier fact can properly consider act, character of defendant’s the nature and plaintiff extent of the harm to the the defendant 170 of the defend- and the wealth intended to cause

caused or ant. 339, 344, 192 A.2d 411 Pa. Montgomery, v.

See Chambers Thus, punitive dam- (1963). deciding in whether 355, 358 act assessed, the nature of the tortfeasor’s should be ages motive, relationship between his itself, with together should be circumstances all other attendant and parties 383, 396, Merriam, Pa. 485 506 account. Feld v. taken into 411 Pa. at v. (1984); Montgomery, A.2d 748 Chambers (Second) 358; of Torts Restatement 345, 192 A.2d at § of dam- imposition principles, these comment e. Under where appropriate only is a civil defendant punish to ages See id. especially egregious. of is complained the conduct not award- damages may be b. Punitive comment § negligence ordinary constitutes misconduct which ed for Id. inadvertence, judgment. and errors of mistake such as states that 908 further following Section Comment b con of others and rights to the indifference “[rjeckless 500)11 (see of them disregard in deliberate scious action § to justify state of mind necessary provide may this However, not construed our courts have damages.” that “reckless proposition for the authority as statement others,” a basis provides which rights to the indifference to both equivalent is punitive damages, for an award in included or willful misconduct of wanton types distinct fact, of those terms. 500 definition the Section “[w]an- Restatement of 500 of the as defined ton misconduct § Co., Philadelphia Transportation Torts 2d and v. Evans (1965), is not the same as 567, 212 A.2d 440 418 Pa. reckless indifference done with a conduct ... ‘outrageous disregard of safe- defines "reckless of the Restatement 11. Section 500 ty" reads as follows: disregard safety another of the is in reckless The actor’s conduct his intentionally which it is fails to do an act does an act or if he do, knowing having of facts reason to know duty to the other realize, only his not man to would lead a reasonable another, physical risk of harm an unreasonable conduct creates greater is substantially than that which is also that such risk but necessary negligent. his conduct to make (1965). (Second) of Torts 500 § Restatement v. others....'" McSparran Pennsylvania the interests of Company, Railroad F.Supp. (E.D.Pa.1966) law) (citations omitted), quoted (applying Pennsylvania Rabada, Focht 35, 39-40, Pa.Superior Ct. A.2d (1970). 157, 160

Comment to Section 500 describes two distinct of types represent reckless conduct which different very (1) knows, mental states: where the “actor or has reason to know, of facts high ... which create a of risk degree of another, harm to physical act, to deliberately proceeds act, or to in of, to fail conscious disregard to, or indifference risk;” (2) and where the has knowledge, “actor such know, facts, reason to of the but does not or appreci realize involved, high degree ate the of risk although a reasonable man in his position would do so.” The first of type reckless conduct described in Section 500 a higher demonstrates degree of than the on culpability second the continuum of mental range states which from specific intent to ordinary An negligence. “indifference” to a known risk under Sec tion 500 is closer to an intentional act than the failure to appreciate the of risk degree danger. from a known This distinction is in particularly important determining what facts justify punitive damages where, here, in cases as is based on liability failure to against warn the risk of a disease a long latency period with arising out of to a useful but unavoidably dangerous product. law,

Under Pennsylvania only type the first reckless conduct described in comment a to Section 500, is to question sufficient create a jury punitive the issue of Thus, damages.12 “punitive are damages awarded for only only purpose punitive damages outrageous The is to deter impossible person risky conduct. It is taking to deter a from action if Thus, 383, Merriam, he is not conscious risk. of the in Feld v. 506 Pa. (1984), 485 A.2d742 damages we addressed the issue of when that, determining are warranted and stressed whether certain outrageous, conduct is act, state of mind of the vital. “[t]he actor is act, intentional, or the failure to must be reckless or malicious." Similarly, explains the Restatement that “reckless indifference the rights of others and disregard conscious action in deliberate of them provide may necessary ... justify punitive state of mind to motive is, a bad conduct, for acts done with outrageous of others.” to the interests a reckless or with indifference 355, 344, 192 A.2d 411 Pa. Montgomery, Chambers of the b to Section (1963) comment (quoting 908[1] v. Mer- See Feld added). Torts) (emphasis Restatement b at 747. Comment riam, 506 Pa. at 485 A.2d comment to that preceding light read Section justified are not section, indicates that Section rises to no more than mental state the defendant’s where American Cysto- Thomas v. negligence. Accord gross Inc., (E.D.Pa.1976) Makers, F.Supp. scope action).13 liability in a products law Pennsylvania (applying Therefore, added). appreciation an damages.” (emphasis Comment b required necessary mental state element of the of the risk is a damages. imposition of such course, any may the seriousness of factfinder consider Of actor's evaluating evidence on the extent potential harm injurious consequences. The more seri- potential comprehension of harm, likely perceive is the risk possible more the actor ous the of that harm. surgical against a by physician the manufacturer of that action a 13. In alleg- damages burn of his cornea from an electrical instrument for court, design, the after by defective edly caused the instrument’s evidence, reviewing observed: the Here, responsibility its as a manufacturer did little to fulfill ACMI quite to take the reasonable safety products. of It failed for the its to have avoided steps might under the circumstances which it have danger clearly harm. But the fact that the foreseeable risk of the mean, contrary plaintiffs does not should have been foreseen least, realized, assertion, fully or at realized to risk was that the knowledge degree which when necessary to show that extent consciously disregarded opprobation of "recklessness.” deserves the that, short, is from the evidence most that can be said In care, this defendant should by objective standard of an measured have done more. say was simply that the evidence We cannot subjective awareness that is kind of demonstrate that sufficient to the conduct. distinguishing of reckless element evidence, clear, think, jury could that the quite from the It is we negligence part gross on the negligence even or well have found conduct, gross or negligent no matter how But this defendant. wanton, required punitive equated with the conduct be cannot therefore, hold, plaintiffs evidence in this case damages. We type of law to demonstrate as a matter was insufficient damages punitive must award of "outrageous conduct” on which an depend.

173 Campus Sportswear also Sweater & v. See M.B. Kahn Co., Constr. 64, 104 (D.S.C.1979), affirmed, F.Supp. 515 644 Cir.1981) (4th (“South 877 Carolina, F.2d as do other most jurisdictions, requires misconduct above and mere beyond negligence gross negligence”). imposition punitive damages is also subject additional, general, First, more the trial restrictions.

judge must determine whether the plaintiff presented has i.e., claim, sufficient evidence to support from the jury might reasonably facts conclude preponderance outrageous evidence establishes See, Bell by conduct the defendant.14 generally, Smith v. Co., 134, Telephone 138-39, 477, 397 Pa. 153 A.2d 480 Inc., Makers, Thomas v. (1959); Cystoscope American 414 F.Supp. 261.

Second, in order punitive damages to recover plaintiff must first prove damages, actual compensatory Roth, Hilbert v. 270, 276, 648, (1959), 395 Pa. 149 A.2d 652 Bruce v. Lincoln-Mercury, Inc. Universal C.I.T. Credit 2, Corp., (3d Cir.1963) 325 22 F.2d (applying Pennsylvania law). Any punitive damages which are awarded must then bear a reasonable relationship those actual compensatory Babcock, v. Hughes damages. 475, 349 Pa. 37 A.2d Ltd., Neal (1944); Carey Mines, Canadian (footnote F.Supp. omitted). at 266-267 punitive damages an products effort to control awards liabili- actions, ty require plain- several courts and commentators would products liability convincing tiff to establish his evidence.” claim "clear and See, e.g., Corp., Pa.Superior Martin v. Johns-Manville 348, 380, (1983) (concurring dissenting Ct. opinion by 300-302, 469 A.2d Wieand); Co., Judge Wangenv. Ford Motor 97 Wis.2d 437, Comment, (1980); 294 Imposition N.W.2d 458 of Damages Liability Punitive in Pennsylvania, Products Actions 57 L.Q. Makers, Temple at 230. But see Cystoscope Thomas American Inc., F.Supp. 414 goal limiting punitive at We believe the of damage products liability litigation awards in the context of is best by focusing served increasing on the the nature of defendant’s conduct instead plaintiff persuasion. the s burden Pennsylvania Under law, imposition punitive damages the remedy is an extreme which to appropriate punish only is to deter and reckless indifference plaintiffs safety. 174 law). 357, (E.D.Pa.1982) (applying Pennsylvania

F.Supp. 377 in litigation important purposé serves an requirement This it Specifically, prevents products. mass-marketed involving expense by insur recovery at the defendant-seller’s multiple of the proportion his only collects ing plaintiff purchasers owes all the defendant punitive damages which Sturm, Ruger Accord & products. and consumers of its denied, 454 1979), cert. 38, (Alaska 48 Day, Co. v. 594 P.2d (1981) (vacating L.Ed.2d 209 102 S.Ct. 70 U.S. holding plaintiff and that where damages award punitive $137,750 damages, any puni in compensatory awarded was trial not to following assessed a new were damages tive (Alaska reh’g., on $250,000), 615 P.2d 621 exceed modified $2,895,000 re 1980) (original damages award of v. Ster $250,000); $500,000 duced to instead Hoffman Inc., (M.D.Pa.1974), 856-57 ling Drug, F.Supp. (3d Cir.1973) (applying Pennsyl-. remand from 485 F.2d 132 Richardson-Merrell, Inc., Toole v. law); 251 Cal. vania Dist.1967) (1st (reducing Cal.Rptr. App.2d award). that, law, under

Appellee Pennsylvania contends support he at trial is sufficient his presented evidence our attention to claim and directs two punitive damages ap was Pennsylvania federal cases law diversity refers to Neal v. Canadian Carey first plied. Appellee Inc., (E.D.Pa.1982), Mines, and maintains F.Supp. there, that, upheld jury’s puni district court simply of the of Dr. testimony on the basis tive award the trial in that case. Neal Mancuso who testified at Neal, dissimilar. twen factually the case before us are Carey’s manufacturing former ty-four employees Philip Compa sued the plant Plymouth Meeting, Pennsylvania, and related claiming that had asbestosis ny they developed used in the inhaling diseases as a result of asbestos fibers The district plant. manufacture of the material at punitive damages justified court ruled that the award was took no action plaintiff proved Philip Carey because Dr. Mancuso’s recommendation in response Septem ber, of the risk Company employees 1963 that the advise its Id. contracting of their an asbestos-related condition. in the appellee The instant case was involved in the application, manufacture, not the asbestos-containing insulation material and employed any was never of the by appellant us, corporations. case before Dr. Mancu- which, so’s the issue of the testimony addressed extent when, (now Celotex) and, and Philip Carey presumably, other appellants, knew the health risks independently employed installers face as a result of asbestos exposure.15 Neal Appellee cannot cite for the proposition that Dr. Mancuso’s testimony justifies punitive damages here be- cause the distinguishable two cases are on the facts. agree

For the same reason we cannot appellee with the Inc., Sterling Drug, (3d 485 F.2d 132 Hoffman fact, 15. In epidemiological Dr. Mancuso testified that Dr. Selikoff’s studies recorded in 1964were the first live scale studies which focused specifically on insulation workers. R.R. at 169a. See also R.R. at addition, that, agreed general, 155a. In he insulation workers experience exposure compared minimal to asbestos as with workers trial, manufacturing plants. in asbestos R.R. at 157a. At the follow- ing excerpt Douglas from a book co-authored Drs. Selikoff and jury: H.K. Lee was read to the early 1960’s is a convenient time at which to terminate a proceed historical review of asbestos disease and to elaborate present concepts. hindsight years With the admirable of 15 we can already reported, yet see that the essential evidence has been but not universally convincing. a fashion to be parenchymal very likely That asbestosis was to occur in those exposed heavy dosage who had early years been in the of the industry enough, was clear but what effects environmental controls proposed upon in the 1930’swould have its future incidence was not possibility quite dosages known. The consequences might grave low have years after initial was still tenuous. Many things suggestions were needed to conform the that were available; emerging importantly, sys- from the studies then most epidemiological investigation large tematic cohorts drawn from industries, types comparison various adequate and with control populations. already organized, Some of these were but it was too early adequately interpreted. for the to be results Lee, (1978), quoted I. Selikoff and D. and Asbestos Disease at R.R. presented 167a-68a. The evidence in this case shows that before the 1960’s, profession considerably the medical knew more about the products manufacturing plants risks workers in asbestos face than confronting asbestos-containing about those installers of materials. Cir.1973), There, his supports sufficiency plain- claim. tiff sought compensatory injury to his retina and an accompanying impairment vision he claimed he sustained a ingesting as result of defendant’s drug, under the chloroquine phosphate, marketed trade charged name “Aralen.” The that plaintiff the Hoffman willfully, defendant-manufacturers either or recklessly, both, the failed to advise United States Food and Drug (FDA) Administration and the medical profession of the danger chloroquine retinopathy associated with Aralen they when were aware of it and even issued literature and other information to doctors and potential users which misrepresented and grossly understated their knowledge dangers drug. the of the at 144-45. plaintiff Id. There the introduced evidence which reports included and letters by to the physicians directly defendants as well as substantial uncontroverted medical literature. These documents estab- lished that the defendants knew at conclusively by least n caused chloroquine changes. adverse retinal plaintiff offered evidence which established also Hoffman initially prior defendants marketed Aralen without FDA approval. appeal On the court determined the jury should have been allowed to consider whether defendants’ product misrepresented literature and understated their and, knowledge dangers so, of the associated with Aralen if that conduct whether constitutes reckless indifference to the public’s safety. Id. appeal

On this Martin has not the argued appellants appreciated the risks of insulation asbestosis and, nevertheless, installers face acted or failed to act flagrant Moreover, if disregard appel their even safety. lee had presented made such an the evidence he allegation, at trial through support Dr. Mancuso insufficient to it. was Instead, appellee states that had access to cer appellants tain the risks generally ques discusses literature tion subject and are to punitive they, because nevertheless, adequate failed to provide warning labels their products. He further contends that: potential

Where the hazard product attendant to a is so and the severe consumer could been given have the guard a opportunity against disabling product by the manufacturer including simple, adequate warning acknowledged of the danger on the product, it jury should be for the to resolve the equasion social [sic] inactivity whether such view of the state of medical art outrageous constitutes such conduct to justify imposition exemplary damages. for Appellee

Brief at 26. The conduct described by appellee might establish of some all of liability the defendants for negligence. It does not the culpable demonstrate mental state necessary, law, under existing Pennsylvania prove recklessly which permit indifferent conduct would a jury to award punitive damages.16

Finally, we note that in his to appeal Superior Court argued Martin the in judge that trial erred instructing the jury apportion it could any compensatory damages according to the percentage harm caused by Martin’s asbestos and which resulted from his ciga- smoking rette and then the reduce total sum of compensato- ry the amount by smoking. attributable Be- of its disposition Martin, cause of the other issues raised by Superior Court did not consider whether that instruc- jury was, fact, tion in proper. posture Given the case on this was appeal, fully argued issue not briefed or before our Consequently, Court. must remand to Superior we for Court its as to determination whether the trial court properly instructed the that it jury any could reduce dam- ages portion award to reflect of Martin’s medical by cigarette smoking. condition caused his Celotex, holding 16. Given our by we do not reach the claim asserted 162-164; see, express supra any nor do regard we view with Supe- of the of the rior Court’streatment issue circumstances under which a corporation may punitive damages successor be held liable in predecessor. outrageous acts of its the case The is vacated and Superior order Court to it for consistent with this proceedings remanded further opinion.

McDERMOTT, J., in concurring opinion, files a PAPADAKOS, J., joins. ZAPPALA, J.,

NIX, C.J., concur in the result. and LARSEN, J., participate did not the consideration or decision of this case.

McDERMOTT, Justice, concurring. Court, of the Opinion Announcing Judgment his correctly Mr. Justice Hutchinson notes that: here it quality presented “the of evidence makes unnec- for us to essary inappropriate consider either legal or the policy arguments theory parties broad a blanket rule for or present supporting against punitive damages litigation involving allowance of products.” mass-marketed In light

At 164-168. of this fact it is wholly unnecessary headlong into a dissertation on the various nuanc- plunge However, es of since punitive damages Pennsylvania. I the issue has been raised must take issue with the that wanton misconduct not be sufficient implication may grounds upon punitive damages. which to assess concept of wanton misconduct was defined this 567, Co., v. 418 Pa. Philadelphia Court Evans Trans. (1965): 212 A.2d 440 that the actor has intentionally means done an act of

[It] character, unreasonable in disregard an of a risk known him or that he must to so obvious be taken to have been it, and so as to make it great probable aware highly that harm would follow.

Id., 574, 212 418 Pa. at A.2d at 443.

Thereafter, Camasi, 1, v. 426 Pa. Fugagli 229 A.2d 735 (1967) wrote: Court not is for necessary the tortfeasor to have actual

[It] knowledge person’s of the other to peril constitute wan- ton misconduct. Such he exists knowledge has if to cause a reasonable man to realize the facts sufficient existing a danger period time sufficient before- to give hand him reasonable to opportunity take and, to danger despite means avoid the this knowledge, recklessly (Citation he ignores person’s peril. other omitted.)

Id., 3, Pa. at 229 A.2d at 736. Rabada, v. 217 Pa.Super. (1970) Focht 268 A.2d 157

the Superior upon Court relied these principles approve imposition punitive damages against a defendant who was found liable for driving while under the influence of intoxicating liquor. That court noted that certain “[in] factual circumstances the risk to others ... be may so obvious and the possibility that harm will so great follow outrageous misconduct may be established without Id., reference motive or intent.” 217 Pa.Superior Ct. at 41, 268 A.2d at 161. however, Hutchinson,

Now Mr. Justice joined by Mr. decide, Justice Flaherty, less, seems to in a vacuum no punitive inappropriate are “where the actor has such knowledge, or facts, reason know the but does not realize or appreciate high degree involved, of risk man a reasonable although would do so.” at 170-171.

In light of accepted definition of wanton misconduct supra, Evans, Fugagli, supra, such a decision contradicts Merriam, what we said in Feld v. Pa. 485 A.2d 742 (1984), “[p]unitive to wit: damages must be based con- ’ is duct which ‘malicious’ ‘wanton ‘reckless’ ‘willful’ or ‘oppressive’____” Id., 506 Pa. at 742 A.2d added). (emphasis Babcock, Hughes See 349 Pa. (1944).

A.2d 551 Therefore, I concur in only. result PAPADAKOS, J., joins concurring this opinion.

Case Details

Case Name: Martin v. Johns-Manville Corp.

Court Name: Supreme Court of Pennsylvania

Date Published: Jun 28, 1985

Citation: 494 A.2d 1088

Docket Number: 33 Western District Appeal Docket, 1984

Court Abbreviation: Pa.