McCrae v. Pittsburgh Corning Corp.

97 F.R.D. 490, 36 Fed. R. Serv. 2d 532, 1983 U.S. Dist. LEXIS 18349
CourtDistrict Court, E.D. Pennsylvania
DecidedMarch 23, 1983
DocketCiv. A. Nos. 81-3677, 81-3172, 82-1135, 80-4819, 81-0198, 82-2145, 81-1295, 81-2950, 82-0685, 81-0068, 82-3964, 81-2951, 82-2182 and 80-0509
StatusPublished
Cited by8 cases

This text of 97 F.R.D. 490 (McCrae v. Pittsburgh Corning Corp.) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCrae v. Pittsburgh Corning Corp., 97 F.R.D. 490, 36 Fed. R. Serv. 2d 532, 1983 U.S. Dist. LEXIS 18349 (E.D. Pa. 1983).

Opinion

MEMORANDUM OPINION AND ORDER

WEINER, District Judge.

In these actions plaintiffs seek to recover damages for personal injuries they allegedly sustained as a result of their exposure to asbestos-containing insulation manufactured by Pittsburgh Corning Corporation (“PCC”) as well as numerous other companies. All the plaintiffs in these actions allege that they were exposed to the asbestos products while civilian employees at naval yards operated by the United States Government or a shipbuilding corporation owned by a private entity engaged in the construction and repair of United States vessels pursuant to contracts with the United States. Some of the plaintiffs allege that they were additionally exposed to the asbestos products while in navigable waters.

Defendant PCC has moved for a, so-called, Phase I trial and related discovery on its affirmative defense known as the government contract defense. Defendant Eagle-Picher has submitted its own brief in support of the motion.1 The above-cap[492]*492tioned cases were assigned to this panel2 by order of the court to determine whether a separate trial would be “conducive to expedition and economy” as required by Rule 42(b) of the Federal Rules of Civil Procedure. After oral argument and having reviewed the memoranda submitted in support of and in opposition to the motion, for the reasons that follow the motion for a Phase I trial is denied.

PCC contends that a separate trial on the government contract defense would be expeditious in that, after discovery, which it claims would be limited in scope, and a trial of “relatively short duration,” if PCC and its co-defendants prevail the actions would be terminated. In a footnote, PCC states that, to the extent that not all defendants participated in the Phase I trial, the cases would nevertheless be streamlined as a result of the dismissal of some defendants. The moving defendants rely heavily on the decision in Tefft, et al. v. A.C. & S., Inc., et al, No. C80-925M (W.D.Wash.1982), in which a similar motion was granted with regard to the government contract defense as it applied under Washington state law.

The plaintiffs vigorously contest the motion. It is their belief that the defense will ultimately fail both as to the facts and the law. They also contend that discovery on the issue will not be of short duration and that the merits are intertwined with the matters which must be proved.

A determination on the merits of the defense is neither required nor appropriate at this time.3 This panel is' solely concerned with determining whether or not a bifurcated trial will be judicially economical and efficient. The determination is within the discretion of the trial judge on the merits of each case. Lis v. Robert Packer Hospital, 579 F.2d 819, 824 (3d Cir. 1978). A defendant seeking bifurcation has the burden of presenting evidence that a separate trial is proper in light of the general principle that a single trial tends to lessen the delay, expense and inconvenience to all parties.

An understanding of the general contours of the eases is helpful in deciding this motion. Of the fourteen cases, although all assert diversity jurisdiction, some aver that there is also admiralty jurisdiction.4 The plaintiffs are citizens of a variety of jurisdictions including Pennsylvania, New Jersey, and Florida. The plaintiffs worked in a variety of shipyards, operated by either the United States Government or private entities in Pennsylvania, New Jersey and New York. Some plaintiffs worked in navigable waters. Some plaintiffs were employed in more than one location. Their employment occurred at various times spanning several decades.

Further, not all of the plaintiffs sued all of the same defendants. Pittsburgh Corning Corporation is a defendant in some eases and a third-party defendant in others.5 Some defendants are named in some suits but not in others. The number of defendants in each case varies but averages around twelve. They dealt with asbestos in a variety of capacities including being suppliers and manufacturers of the product. They did so at various times over the span of several decades.

All of these factors are relevant to place into perspective the utility of a Phase I [493]*493trial.6 PCC relies on In re: “Agent Orange” Product Liability Litigation, 506 F.Supp. 762 (E.D.N.Y.1980) (Agent Orange I) and 534 F.Supp. 1046 (E.D.N.Y.1982) (Agent Orange II) as well as Tefft as persuasive authority for using the procedural device sought here. We note distinguishing factors in both cases. In the Agent Orange situation, all of the plaintiffs were exposed to a chemical in one locale: Vietnam. They were exposed during a readily definable period of time. In Tefft, as PCC informs this panel, “only three cases were involved.” This panel finds that fact cuts against the granting of the defendant’s motion rather than for it. Certainly the facts to be presented to the jury are less burdensome in a Phase I trial involving only three cases as opposed to one involving fourteen cases where the number of plaintiffs and defendants increases greatly.

Our concern is that a Phase I trial itself will be unwieldy and confusing. By way of illustration, we will assume arguendo that under the substantive law of Pennsylvania and/or the applicable Pennsylvania choice-of-law rule, an important issue would be the one which Judge Pratt in In re Agent Orange Product Liability Litigation, supra, characterized as “[pjerhaps the central question for the Phase I trial,” 534 F.Supp. at 1057—namely, “whether the Government knew as much as the defendants did about hazardous aspects of this product.” Id.7 In a context in which several defendants supplied asbestos at numerous times across an extended span of years, the evidence necessary for one or more defendants to establish the government contract defense8 might include the knowledge that one or another defendant had as compared to the knowledge the Government had, at various points of time, concerning the hazardous aspects of asbestos. The complexities of proof might well be geometrically compounded when the relative knowledge of the Government and a particular defendant over a period of years is in turn linked to the varying time periods of exposure of multiple plaintiffs. Without deciding the ramifications of the hypothetical situation, we use it to suggest the confusing facts that a jury may have to absorb in hearing this issue as to many plaintiffs rather than one plaintiff.

In addition, with regard to the differing time periods concerning the exposure of each plaintiff, it appears that the specifications changed over various periods of time. This factual difference for each plaintiff could require different proof and possibly lead to different conclusions. Such would not be the case with just one trial at a time in front of different juries.9

We also find that the potential choice of law issue,10 which neither PCC nor Eagle-Picher addressed in their lengthy memoran-da but PCC was asked to address at oral argument, could further add to the confusion of a jury.

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Bluebook (online)
97 F.R.D. 490, 36 Fed. R. Serv. 2d 532, 1983 U.S. Dist. LEXIS 18349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccrae-v-pittsburgh-corning-corp-paed-1983.