Borman v. Raymark Industries, Inc.

960 F.2d 327, 1992 U.S. App. LEXIS 5456, 1992 WL 58843
CourtCourt of Appeals for the Third Circuit
DecidedMarch 30, 1992
DocketNo. 89-2110
StatusPublished
Cited by14 cases

This text of 960 F.2d 327 (Borman v. Raymark Industries, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Borman v. Raymark Industries, Inc., 960 F.2d 327, 1992 U.S. App. LEXIS 5456, 1992 WL 58843 (3d Cir. 1992).

Opinion

OPINION OF THE COURT

SCIRICA, Circuit Judge.

In this diversity case involving asbestosis, the district court declined to charge the jury on the apportionment of decedent’s damages between cigarette smoking and asbestos exposure. Because we predict that the Pennsylvania Supreme Court would not find a reasonable basis for apportionment in this case, we will affirm.

I.

Richard Borman worked as an insulator at various locations and with various employers from 1956 to 1987, when he became unable to work. During the first thirteen years, he came in daily contact with asbestos products manufactured by the appellant, Celotex. He also smoked over a pack of cigarettes a day for thirty-five years (1950-1985). In 1985, he was diagnosed as having asbestosis, and in 1988, lung cancer. In that same year, he died of lung cancer.

On February 11, 1987, he and his wife filed suit in district court against several manufacturers of asbestos products, including Celotex. The complaint alleges that occupational exposure to these products caused Mr. Borman’s disability1 and [329]*329that defendants should be strictly liable for failure to warn of the products’ dangerous propensities.2 Before trial, several defendants, later joined by Celotex, asked the trial judge to “instruct the jury to allow apportionment of the harm alleged by the plaintiff between that caused by cigarette smoking and that caused by exposure to asbestos.” The motion was taken under advisement.

On August 15, 1989, trial commenced on a reverse bifurcated basis against the non-settling defendants, including Celotex. At the conclusion of testimony, the trial judge found that there was no reasonable basis for apportionment of damages,3 and denied the request for charge.4 Subsequently, the jury returned a verdict on damages, awarding $532,719 to Mrs. Borman and the estate of her husband. Later, the jury returned a verdict on liability against Celotex but exonerated the remaining defendant.

Celotex moved for a directed verdict and/or j.n.o.v., and a new trial, asserting inter alia that the evidence warranted an apportionment of damages charge and did not support damages for lost wages. The trial court denied this motion in an order without opinion. Celotex appealed, challenging the court’s failure to charge on apportionment of damages and to direct a verdict on the issue of wage loss.5

We have jurisdiction under 28 U.S.C. § 1291 (1988).6 We will affirm the district court’s denial of j.n.o.v. unless the record is “ ‘critically deficient of that minimum quantum of evidence from which the jury might reasonably afford relief.’ ” Honeywell, Inc. v. American Standards Testing Bureau, Inc., 851 F.2d 652, 654 (3d Cir.1988) (citations omitted), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 787 (1989). We will review the denial of a motion for new trial only for abuse of discretion unless, as in this case, the motion was based on the application of a legal precept, in which case our review is plenary. Id. As a federal court sitting in diversity, we look to state law. Our review of the district court’s interpretation of state law is plenary, Compagnie des Bauxites de Guiñee v. Insurance Co. of North America, 724 F.2d 369, 371 (3d Cir.1983).

II.

Celotex’s primary argument concerns apportionment of damages. According to Celotex, the evidence was sufficient to require the trial court to charge the jury on apportionment of damages between asbes[330]*330tos exposure and tobacco consumption. Our first step, therefore, is to review the expert testimony presented at trial.

Mrs. Borman called Dr. Daniel DuPont, a specialist in pulmonary medicine. On direct examination, Dr. DuPont testified that Mr. Borman’s “exposure to asbestos dust was a substantial contributing factor to” both his asbestosis and his lung cancer. On cross-examination, Dr. DuPont testified that “Mr. Borman’s cigarette smoking history [was] a substantial contributing factor to the development of his lung cancer.”

Much of the cross-examination of Dr. DuPont, however, focused on the increased risk of lung cancer caused by tobacco smoking and asbestos inhalation:

Q And what is [the risk of developing lung cancer for persons with a significant smoking history] as compared with the non-smokers and ... the non-asbestos exposed folks in the general population?
A Up to 12 — up to 12 to 15 times the group you compared, which is known as the background group.
Q The background group is — that’s the so-called clean livers, the people who aren’t exposed to asbestos and who didn’t smoke; right?
A Correct.
* * * * * *
Q Doctor, can you tell the jury what the risk of an occupationally exposed worker who was not a cigarette smoker, what his risk is of getting lung cancer as compared to the background population of non-smokers, non-asbestos exposed people?
A Yes.
Q What is it?
A Up to five to six times the background incidence.
Q So would you agree with me, therefore, Doctor, that taken alone, cigarette smoking is two or three times more likely to cause a lung cancer than asbestos is, taken alone?
A In the interpreted statistically, and that is, in looking at a large number of people or a body of people, which the rule of epidemiology, that that’s what the statistics would indicate, yes.
Not in the particular case, however. As I previously testified, under any one individual, which is different than the information that you have reviewed, in one individual that any one can give us an assignment of causation.
Q Well, Doctor, along those lines, since you’ve testified that — on the one hand you’ve given us these numbers, on the one hand you said that you agree with me that smoking alone is two or three times as likely to cause lung cancer as asbestos alone — why should this jury not assume that in this case, cigarette smoking was two or three times as responsible, under your analysis, for the lung cancer as asbestos was?
A Among other reasons, you haven’t gotten into the statistics as to the risk of lung cancer in the population that Mr. Borman would fit. And that would be the population of people who have combined asbestos exposure and tobacco consumption. And those factors are very impressive.
Those factors, just to complete the statement, refer to synergistic effect. And that is, if you take the 12 to 15 up to — I want to make that clear for the record — up to 12 to 15 fold increase of cigarette smoking alone.

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Bluebook (online)
960 F.2d 327, 1992 U.S. App. LEXIS 5456, 1992 WL 58843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borman-v-raymark-industries-inc-ca3-1992.