On Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 87-06443)
Before: Hutchinson, Cowen and Seitz, Circuit Judges
This personal injury action arose out of the mesothelioma-related death of Frank Thomas. Following a jury trial, a verdict was rendered in favor of defendant Keene Corporation. The plaintiffs moved for a new trial and the district court granted the plaintiffs' motion. The plaintiff prevailed at the second trial. Keene appeals from the order of the district court which granted the new trial. We must determine whether the reasons advanced by the district court warranted the grant of a new trial. For the reasons that follow, we conclude that the order granting a second trial was in error.
Thomas served in the United States Navy from April 5, 1951 to March 24, 1955. For approximately nine months of that time, Thomas was exposed to various kinds of asbestos and asbestos products while working as a machinist aboard the USS Gainard and the USS Timmerman at the Philadelphia Naval Shipyard. In the summer of 1987, more than twenty years later, Thomas was diagnosed as having an asbestos-related condition. At that time, he was fifty-five years old. Following his diagnosis, Thomas filed suit in the district court against several manufacturers of asbestos. He died on August 10, 1988.*fn1
All of the defendants, with the exception of Keene and Owens-Illinois, settled or were dismissed prior to trial. After the first day of trial, plaintiffs settled their case against Owens-Illinois and the trial proceeded against Keene Corporation as the sole remaining defendant.*fn2
At trial, it was undisputed that Thomas' death was caused by mesothelioma. Mesothelioma is a cancerous condition involving the pleura -- the lining of the lung -- most frequently caused by exposure to some types of asbestos. The evidence at trial also established that he had been exposed to a variety of products containing asbestos, some, but not all, of which were manufactured and distributed by Keene.
Testimony established that there are three types of asbestos: crocidolite, amosite and chrysotile. Plaintiffs presented the testimony of two experts, Dr. DuPont and Dr. Harrer, on the issue of causation. Both testified that Mr. Thomas' mesothelioma was caused by exposure to asbestos and that all exposures to all types of asbestos were substantial contributing factors to the development of his mesothelioma.
In response to the testimony of Drs. DuPont and Harrer, Keene presented the testimony of Dr. Gee. Dr. Gee testified that chrysotile asbestos, unlike other types of asbestos, does not cause mesothelioma. Thomas testified, via videotape, that he had been exposed to asbestos products manufactured by Keene. However, no testimony was offered by either party as to what type of asbestos was in any of the Keene products to which Thomas was exposed. The plaintiffs objected to the introduction of Dr. Gee's testimony on the ground that Keene had not presented any evidence that its product contained chrysotile and thus was irrelevant. The court overruled plaintiffs' objection. Following Dr. Gee's testimony, the plaintiffs moved to strike, again on the grounds of irrelevance. The court denied the motion to strike. Dr. Gee was Keene's only witness at trial.
The jury, in answer to special interrogatories, determined that the asbestos products supplied by Keene were defective because they lacked adequate and proper warnings of the danger in the use of the product. However, the jury concluded that the products were not a substantial contributing factor in bringing about the illness and subsequent death of Thomas. The jury, therefore, found in favor of Keene.
Following the jury's verdict, plaintiffs moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. On August 1, 1991, the district court denied the motion for judgment notwithstanding the verdict but granted the motion for a new trial. The district court, in the opinion accompanying its order, held that it had erred in admitting Dr. Gee's testimony because, while the substance of his testimony was that chrysotile asbestos does not cause mesothelioma, Keene had introduced no evidence that its products contained chrysotile asbestos. Because Keene did not produce such evidence, the court concluded that Dr. Gee's testimony was irrelevant and that "it [was] very likely that the admission of the irrelevant testimony of Keene's expert misled the jury into believing that Keene's product contained chrysotile asbestos and could not therefore have caused Mr. Thomas' mesothelioma." App. at 37.
Keene then moved for reconsideration of the court's order on the ground that in granting a new trial, the district court had impermissibly shifted the burden of proof to Keene. That motion was denied on August 14, 1991. The reasons set forth by the court in its opinion accompanying the order denying the motion for reconsideration differed somewhat from those set forth in its August 1 opinion. The court noted that the basis for its previous decision was its Conclusion that "the admission of any evidence that Keene's product contained chrysotile asbestos was substantially erroneous, in that the jury was very likely misled into believing that Keene's products contained chrysotile and could not therefore have caused Mr. Thomas' mesothelioma." App. at 40. The court stated:
Keene is correct in its assertion that Dr. Gee's testimony was relevant and admissible to the extent that it served to rebut the testimony of plaintiffs' experts that all exposure to asbestos was a substantial contributing factor to Mr. Thomas' development of mesothelioma. . . . However, Dr. Gee's testimony was not so limited and the clear inference underlying Keene's case was that its products could not have caused Mr. Thomas' mesothelioma because they contained chrysotile asbestos.
App. at 40-41. Thus, the court apparently determined that its previous Conclusion, that Dr. Gee's testimony should have been excluded because it was irrelevant, was in error.
In reaching its Conclusion, the court relied upon a number of events at the first trial. The court noted that during opening arguments, counsel for Owens-Illinois, Keene's codefendant, had told the jury that plaintiffs had sued the wrong defendant because Owens-Illinois' products contained chrysotile and chrysotile does not cause mesothelioma. Moreover, the court stated that counsel for Keene had "suggested [in her opening] that the arguments advanced by Owens-Illinois also applied with respect to Keene products."*fn3 App. at 41. In addition, Dr. Gee had testified about the absence of a causal link between mesothelioma and chrysotile asbestos, and had testified that chrysotile asbestos was used on United States Navy ships. Based upon this evidence, the district court stated, the jury "could not properly conclude that Keene's products contained chrysotile." App. at 42.
The court reasoned, and Keene conceded, that the jury's verdict was most likely based on its Conclusion that chrysotile asbestos does not cause mesothelioma. Because the jury must have so concluded, the district court opined that the "verdict would thus also necessarily be based on a Conclusion that Keene's products contained chrysotile asbestos [and] the jury could not properly make such a Conclusion  because there was absolutely no evidence concerning the contents of Keene's products." App. at 42 (emphasis added). The court rejected Keene's contention that the court had implicitly shifted the burden of proof to Keene stating:
There is no doubt that plaintiffs bore the burden of proving all the elements of their case, and that Keene was not required to produce any evidence regarding the contents of its products. However, a jury cannot base a verdict on a Conclusion for which there is no evidentiary basis. This does not shift the burden of proof, nor does it substitute the judgment of the court for that of the jury. I did not grant a new trial because I would have come to a different Conclusion from that of the jury, ...