847 F.2d 523
In re ASBESTOS CASES. (Two Cases)
Hoo Kin CHANG and Ethel F.O. Chang, Plaintiffs/Appellees,
v.
JOHNS-MANVILLE SALES CORPORATION, formerly known as
Johns-Manville Products Corp., et al., Defendants,
and
Raymark Industries, Inc., Successor to Raybestos-Manhattan,
Inc., Defendant/Appellant.
Charles CHUN, Raymond Judd and Carinthia Judd, Moses Ho and
Fanny Ho, Richard Lau and Janet C. Lau, Plaintiffs/Appellees,
v.
JOHNS-MANVILLE SALES CORPORATION, formerly known as
Johns-Manville Products Corp., et al., Defendants,
and
Raymark Industries, Inc., Successor to Raybestos-Manhattan,
Inc., Defendant/Appellant.
Nos. 85-1912, 85-1913.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Sept. 17, 1987.
Decided May 23, 1988.
Don Howarth, Los Angeles, Cal., Paula Devens, Honolulu, Hawaii, for defendant/appellant.
L. Richard DeRobertis, Honolulu, Hawaii, for plaintiffs/appellees.
Appeal from the United States District Court for the District of Hawaii.
Before CANBY and BOOCHEVER, Circuit Judges, and TAKASUGI, District Judge.
CANBY, Circuit Judge.
INTRODUCTION
Plaintiff-appellees Hoo Kin Chang and Charles Chun worked for more than thirty years at the Pearl Harbor Naval Shipyard before retiring in 1976. In 1980, they brought these negligence and products liability actions against defendant-appellants Raymark, Owens-Illinois, Eagle-Picher, and other manufacturers for asbestos-related injuries. The cases were the subject of global settlement negotiations along with 139 other cases filed in state and federal courts. Chang and Chun's actions were consolidated and tried together in United States District Court for the District of Hawaii.
Following four weeks of trial and several days of deliberations, the jury returned separate special verdicts in favor of plaintiffs on a product liability theory. The district court reduced the verdicts to reflect that portion of liability attributable to defendants that had settled. The court then entered final judgments of $60,000 for Chun and $43,000 for Chang. The court also awarded prejudgment interest.
Defendant-appellants challenge interrogatories submitted to the jury, various jury instructions and the award of prejudgment interest to plaintiffs. We affirm the judgment and, because we find the issues on appeal to have been frivolous, we award attorneys' fees to plaintiffs. Fed.R.App.P. 38.
DISCUSSION
A. Jurisdiction and Standard of Review
Jurisdiction in the district court was based on diversity of citizenship. 28 U.S.C. Sec. 1332. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
State law controls the substance of jury instructions in diversity cases. Miller v. Republic Nat. Life Ins. Co., 789 F.2d 1336, 1338-39 (9th Cir.1986). The question of whether an incorrect instruction is prejudicially erroneous is governed by federal law. E.g., Pollock v. Koehring Co., 540 F.2d 425, 426 (9th Cir.1976). Prejudicial error results when, "looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered." Id., quoted in Miller, 789 F.2d at 1339. "[T]he instructions and interrogatories must fairly present the issues to the jury ... If the issues are fairly presented, the district court has broad discretion regarding the precise wording." Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 455 (9th Cir.1986) (citations omitted); see Los Angeles Memorial Coliseum Comm. v. N.F.L., 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984).
JURY INTERROGATORIES
Defendants Owens-Illinois and Eagle Picher contend that two of the district court's special interrogatories to the jury misled the jury and relieved plaintiffs of their burden of proving all the elements of their causes of action. The interrogatories were:
1. On what date was Hoo Kin Chang informed or on what date should he have known that this disease was a result of the Defendants' negligence or Defendants' defective products?
2. Were one or more asbestos-containing products of any of the defendants listed on Chart One identified and used at Pearl Harbor Naval Shipyard from the year 1943 to 1976?
Defendants contend that the first interrogatory improperly assumed the existence of Chang's disease, the existence of negligence or a defect in defendants' product, and causation. They contend that the second interrogatory improperly permitted a finding of liability simply because of the presence of one of defendants' products at Pearl Harbor, without any showing of plaintiffs' exposure to it and resulting injury.
If the jury had been furnished no other interrogatories and been given no instructions, there might be some substance to defendants' arguments. In light of the record, however, the arguments are frivolous. Other interrogatories separately required the jury to determine whether defendants were negligent, whether their products were defective, and whether the negligence or defect was a substantial factor causing any injuries of plaintiffs. These questions made it perfectly clear that the jury was not to assume from the first interrogatory that injury, causation, and negligence or defect were foregone conclusions.
The record also makes abundantly clear the fact that the second interrogatory was a response to contentions by one or more defendants, including Owens-Illinois, that their products had never reached Pearl Harbor. If the jury answered that question favorably to any defendant, the jury was not required to answer the additional questions regarding any negligence of that defendant, any defect in its products, or whether that negligence or defect caused plaintiffs any injury. In context, the second interrogatory, like the first one, could not have misled the jury.
Our review of all of the district court's instructions simply buttresses our conclusion. The jury was instructed in detail as to the necessity of finding the elements of product defect, causation and injury. While some of these instructions were also given in the context of the negligence charge, on which the jury made negative findings, the necessary instructions were repeated in regard to the strict liability theory. References to proximate causation appear throughout the more than forty pages of transcript setting forth the court's oral charge to the jury. The need to show injury was also made clear.
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847 F.2d 523
In re ASBESTOS CASES. (Two Cases)
Hoo Kin CHANG and Ethel F.O. Chang, Plaintiffs/Appellees,
v.
JOHNS-MANVILLE SALES CORPORATION, formerly known as
Johns-Manville Products Corp., et al., Defendants,
and
Raymark Industries, Inc., Successor to Raybestos-Manhattan,
Inc., Defendant/Appellant.
Charles CHUN, Raymond Judd and Carinthia Judd, Moses Ho and
Fanny Ho, Richard Lau and Janet C. Lau, Plaintiffs/Appellees,
v.
JOHNS-MANVILLE SALES CORPORATION, formerly known as
Johns-Manville Products Corp., et al., Defendants,
and
Raymark Industries, Inc., Successor to Raybestos-Manhattan,
Inc., Defendant/Appellant.
Nos. 85-1912, 85-1913.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Sept. 17, 1987.
Decided May 23, 1988.
Don Howarth, Los Angeles, Cal., Paula Devens, Honolulu, Hawaii, for defendant/appellant.
L. Richard DeRobertis, Honolulu, Hawaii, for plaintiffs/appellees.
Appeal from the United States District Court for the District of Hawaii.
Before CANBY and BOOCHEVER, Circuit Judges, and TAKASUGI, District Judge.
CANBY, Circuit Judge.
INTRODUCTION
Plaintiff-appellees Hoo Kin Chang and Charles Chun worked for more than thirty years at the Pearl Harbor Naval Shipyard before retiring in 1976. In 1980, they brought these negligence and products liability actions against defendant-appellants Raymark, Owens-Illinois, Eagle-Picher, and other manufacturers for asbestos-related injuries. The cases were the subject of global settlement negotiations along with 139 other cases filed in state and federal courts. Chang and Chun's actions were consolidated and tried together in United States District Court for the District of Hawaii.
Following four weeks of trial and several days of deliberations, the jury returned separate special verdicts in favor of plaintiffs on a product liability theory. The district court reduced the verdicts to reflect that portion of liability attributable to defendants that had settled. The court then entered final judgments of $60,000 for Chun and $43,000 for Chang. The court also awarded prejudgment interest.
Defendant-appellants challenge interrogatories submitted to the jury, various jury instructions and the award of prejudgment interest to plaintiffs. We affirm the judgment and, because we find the issues on appeal to have been frivolous, we award attorneys' fees to plaintiffs. Fed.R.App.P. 38.
DISCUSSION
A. Jurisdiction and Standard of Review
Jurisdiction in the district court was based on diversity of citizenship. 28 U.S.C. Sec. 1332. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.
State law controls the substance of jury instructions in diversity cases. Miller v. Republic Nat. Life Ins. Co., 789 F.2d 1336, 1338-39 (9th Cir.1986). The question of whether an incorrect instruction is prejudicially erroneous is governed by federal law. E.g., Pollock v. Koehring Co., 540 F.2d 425, 426 (9th Cir.1976). Prejudicial error results when, "looking to the instructions as a whole, the substance of the applicable law was [not] fairly and correctly covered." Id., quoted in Miller, 789 F.2d at 1339. "[T]he instructions and interrogatories must fairly present the issues to the jury ... If the issues are fairly presented, the district court has broad discretion regarding the precise wording." Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 455 (9th Cir.1986) (citations omitted); see Los Angeles Memorial Coliseum Comm. v. N.F.L., 726 F.2d 1381, 1398 (9th Cir.), cert. denied, 469 U.S. 990, 105 S.Ct. 397, 83 L.Ed.2d 331 (1984).
JURY INTERROGATORIES
Defendants Owens-Illinois and Eagle Picher contend that two of the district court's special interrogatories to the jury misled the jury and relieved plaintiffs of their burden of proving all the elements of their causes of action. The interrogatories were:
1. On what date was Hoo Kin Chang informed or on what date should he have known that this disease was a result of the Defendants' negligence or Defendants' defective products?
2. Were one or more asbestos-containing products of any of the defendants listed on Chart One identified and used at Pearl Harbor Naval Shipyard from the year 1943 to 1976?
Defendants contend that the first interrogatory improperly assumed the existence of Chang's disease, the existence of negligence or a defect in defendants' product, and causation. They contend that the second interrogatory improperly permitted a finding of liability simply because of the presence of one of defendants' products at Pearl Harbor, without any showing of plaintiffs' exposure to it and resulting injury.
If the jury had been furnished no other interrogatories and been given no instructions, there might be some substance to defendants' arguments. In light of the record, however, the arguments are frivolous. Other interrogatories separately required the jury to determine whether defendants were negligent, whether their products were defective, and whether the negligence or defect was a substantial factor causing any injuries of plaintiffs. These questions made it perfectly clear that the jury was not to assume from the first interrogatory that injury, causation, and negligence or defect were foregone conclusions.
The record also makes abundantly clear the fact that the second interrogatory was a response to contentions by one or more defendants, including Owens-Illinois, that their products had never reached Pearl Harbor. If the jury answered that question favorably to any defendant, the jury was not required to answer the additional questions regarding any negligence of that defendant, any defect in its products, or whether that negligence or defect caused plaintiffs any injury. In context, the second interrogatory, like the first one, could not have misled the jury.
Our review of all of the district court's instructions simply buttresses our conclusion. The jury was instructed in detail as to the necessity of finding the elements of product defect, causation and injury. While some of these instructions were also given in the context of the negligence charge, on which the jury made negative findings, the necessary instructions were repeated in regard to the strict liability theory. References to proximate causation appear throughout the more than forty pages of transcript setting forth the court's oral charge to the jury. The need to show injury was also made clear. The jury was later supplied a transcript of the court's instructions. The instructions, as a whole, made clear to the jury its responsibilities for finding all the elements of plaintiffs' causes of action. See Kisor v. Johns-Manville, 783 F.2d 1337, 1340 (9th Cir.1986) (reviewing adequacy of jury instructions to ensure that jury fully understood the issues); Coursen v. A.H. Robins Co., 764 F.2d 1329, 1337 (9th Cir.1985) (stating that jury instruction errors in civil trials are not grounds for reversal unless errors more probably than not influenced verdict). We find no error.
DISCOVERY OF CLAIM INSTRUCTION
Raymark next challenges the jury instructions with regard to plaintiff Chang's discovery of his claim for asbestos injuries. The charge at issue stated:
In Mr. Chang's case you will be asked to decide when he discovered or should have discovered his claim for an--for an asbestos-related injury. A plaintiff discovers he has a claim for asbestos injuries at the time his doctors give him an informed diagnosis. An informed diagnosis means that the doctor must explain to him that he is suffering a disease caused by asbestos which will cause him pain and disability. Thus, a doctor must inform him of his illness to the degree he is capable of understanding in order to find a plaintiff has discovered his claim.
Raymark contends that this instruction misstates Hawaii law. Raymark takes particular exception to the instruction's apparent requirement that the plaintiff be given an "informed diagnosis" before he can be considered to have discovered his claim. The parties dispute whether Hawaii has imported such a rule by following California limitations law in some other respects, see Jacoby v. Kaiser Foundation Hospital, 1 Haw.App. 519, 622 P.2d 613 (Ct.App.1981), and also dispute whether California itself requires an informed diagnosis. Velasquez v. Fibrebroad Paper Products Corp., 97 Cal.App.3d 881, 889, 159 Cal.Rptr. 113, 118 (Ct.App.1979) (plaintiff in asbestosis case does not discover his claim for personal injury upon simple diagnosis without "[a] brief explanation of findings and prognosis by the examining physician.") As plaintiffs point out, however, all of this dispute is quite beside the point.
The instruction of which Raymark complains was not the district court's entire limitations instruction. Immediately after stating to the jury that a plaintiff discovers he has a claim for asbestos injuries when the doctors give him an informed diagnosis, the court went on to say:
However, a plaintiff must be diligent in discovering the cause of illness. Thus, you are instructed that even before an informed medical diagnosis is made, a plaintiff should have discovered his claim on the date he should have discovered through reasonable diligence first that he was ill, and second, that the defendants have been negligent or manufactured defective products and, third, that his illness was caused by the defendant's negligence or manufacture of defective products. The plaintiff should have discovered all three of the elements.
You may find that Mr. Chang learned or should have learned of each of these three elements at different times.
The jury apparently requested and received a transcript of the court's oral instruction a few days later. The Chang special verdict form simply asked:
On what date was Hoo Kin Chang informed or on what date should he have known that he was suffering from an asbestos-related disease and that this disease was the result of the Defendants' negligence or Defendants' defective products?