Exhibit,Appendix: ROBERT ROSS et al VS. C.C. MOORE & CO. ENGINEERS

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Edward R. Hugo [Bar No. 124839]
P.M. Bessette [Bar No. 127588}
Thomas J. Moses [Bar No. 116002]
BRYDON HUGO & PARKER

135 Main Street, Suite 2000

San Francisco, CA 94105
Telephone (415) 808-0300
Facsimile (415) 808-0333

Email: tinkoff@bhplaw.com

Attorney for Defendants
SWINERTON BUILDERS

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

OCT 28 2011

Clerk of the Court
BY: WILLIAM TRUPEK
Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO -- UNLIMITED JURISDICTION

ROBERT ROSS,
Plaintiff,

vs.

ASBESTOS DEFENDANTS (B*P), et al.

(ASBESTOS)
Case No: CGC-07-274099

COMPENDIUM OF CASES IN SUPPORT
OF OPPOSITION OF DEFENDANT
SWINERTON BUILDERS TO
PLAINTIFFS’ MOTION TO
CONSOLIDATE ACTIONS FOR ALL

Defendants. PURPOSES INCLUDING TRIAL
Date: November 10, 2011
Time: 930 a.m.
Dept.: 503
Judge: Hon, Teri L. Jackson
ROBERT ROSS and JEAN ROSS, {ASBSTOS)

Plaintiffs,

VS.

C.C. MORE & CO. ENGINEERS; et al.

Defendants.

CGC-10-275731

Exhibit 1: Cain v. Armstrong World Industries (8.D. Ala. 1992) 785 F. Supp. 1448

Exhibit 2: Consorti v. Armstrong World Indus., Inc. (2"4 Cir. 1995) 72 F.3d 1003

Exhibit 3: Hendrix v. Raybestos-Manhattan (11 Cir. 1985) 776 F.2d 1492

Exhibit 4: It re Brooklyn Navy Yard Asbestos Litigation (2"4 Cir, 1992) 971 F.2d 831

“L

COMPENDIUM OF CASES IN SUPPORT OF OPPOSITION OF DEFENDANT TO PLAINTIFFS’ MOTION
TO CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALcoe ND HM

Exhibit 5: In re Consolidated Parlodel Litig. (D.N.J. 1998) 182 F.R.D. 441

Exhibit 6: In re Ethyl Corp. (Tex. 1998) 975 S.W.2d 606

Exhibit 7: In re Welding Rod Fume Prods. Liab. Litig. (N.D. Ohio), 2006 WL 1869548

Exhibit 8: Malcolm v. National Gypsum Co. (24 Cir. 1993) 995 F.2d 346

Exhibit 9: Schwartz, A Letter To The Nation’s Trial Judges: How The Focus On
Efficiency Is Hurting You And Innocent Victims In Asbestos Liability Cases
(2000) 24 Am. J. Trial Advocate. 247

-2-

COMPENDIUM OF CASES IN SUPPORT OF OPPOSITION OF DEFENDANT TO PLAINTIFFS’ MOTION
‘TO CONSOLIDATE ACTIONS FOR ALL PURPOSES INCLUDING TRIALEXHIBIT 1Westlaw.
‘785 F.Supp, 1448
785 F.Supp, 1448, Prod Liab.Rep, (CCH) P 13,285

P
Cain y, Armstrong World Industries
S.D,Ala,,1992,

United States District Court, §,D, Alabama, South-
em Division,
CAIN, sic.

ve
ARMSTRONG WORLD INDUSTRIES, et al,
WEAVER, otal,

¥,
ARMSTRONG WORLD INDUSTRIES, et al.
HICKS, ete,

¥.
ARMSTRONG WORLD INDUSTRIES, et al,
BOLEN

Y
ARMSTRONG WORLD INDUSTRIES, vf al.
CLEMENTS, et al.

Ye
ARMSTRONG WORLD INDUSTRIBS, et al,
James WEAVER, ot ai,

Ye
ARMSTRONG WORLD INDUSTRIBS, ef al.
BENJAMIN, et al,

v.
ARMSTRONG WORLD INDUSTRIES, at al,
. BROWN, et al,

ve
ARMSTRONG WORLD INDUSTRIES, at ef,
Willard BROWN, et al.

ve
ARMSTRONG WORLD INDUSTRIES, ot al,
Thomas BROWN, st al,

Ve
ARMSTRONG WORLD INDUSTRIES, ot al,
WILSON, ot al,

yw
ARMSTRONG WORLD INDUSTRIES, et al.
BRUNER, et al,

v :
ARMSTRONG WORLD INDUSTRIES, at al,
BROOKS

Page 2 of 11

Page !

v
ARMSTRONG WORLD INDUSTRIES, at al,
Nos. CV-87-1172, CY-87-1179, CV-87-1180, CV-
87-1199, CV-87-1221, CV-87-1245, CV-87-1256,
CV-87-1279, CY-87-1285, CY-87-1293, CV-
87-1299, CV-87-1305 and CY-87-1316,

Feb, 18, 1992.

Ten personal injury and three wrongful death ac-
tons, arising out of worker exposure to asbestos,
were brought against various asbestos manufachu-
ors, Manufacturers moved for judgment notwith-
standing verdict or for now trials, or remittitur of
damages, following Jury verdicts in claimants’ fa-
vor, The District Court, Butler, J, held that: (1)
damages yerdist wore grossly excessive, and (2)
taint of awards was sufficient to require new trial
on llabillty as well gs dumages,

‘New trial ordered,
‘West Headnotes
{1] Federal Civil Procedure 170A €==2608.1

170A Federal Civil Procodurs
HIOAXYT Judgment
VHMAXVIICE) Nowwithstanding Vardiet
170Ak2608 Evidence
W7OAK2608.5 k, In General. Most
Cited Cases
(Formerly 170Ak2608)
Asbestos manufacturers were not entitled to judg-
ment notwithstanding verdict in thelr favor jn suits
brought by workera claiming personal injury due to
asbestos contaol; reasonable trlers of fact could dif-
for ps to whether clalmants had suffered from as-
bestos-related lung disease, or were exposed to par-
tleular defendant's product, and whother any expds-
ure wes a substantial contributing factor ta fnjury.

12] Damages 115 €a127,3

115 Damages

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785 F.Supp, 1448, Prod.Llab.Rep. (CCH) P 13,285

L1SVI Amount Awarded
LSYTICA) In General
115K127.3 k. Excassive Damages in Gon-
eral. Most Cited Cases
(Formerly 115k128)
Damages ere deemed to be excessive under

Alabama law if they shack judicial conscience or +

are so great as to indicate bias, passion, pr preju~
dice.

[3] Damages 115 €=127,71(2)

115 Dameges
L1SVMl Amount Awarded
11S5VIICB) Injuries to the Parson
{t5ki27,.69 Expenses Of, and Loss ‘of
Services Performed By, Injured Person
LISKI27.71 “Medical Treatment and
Custodial Care
115k127,71(2) k, Future Expenses,
‘Most Cited Cases
(Formerly 1151135)
Jury award of between $30,000 and $100,000 for
future medical expenses, for each of ton claimants
alleging that they were injured through exposure to
asbestos, was clearly excessive and unsupported by
evidence; in only three out of ten cases did
claimants arguably prove such amounts arid for oth-
ers thelr own experts testified only as to cost of
$200 to $500 a year for medioel monitoring,

[4] Damages 115 €=>127,7

115 Damages

LISVIL Amount Awarded

T1SVI(B) Injuries to the Person
115k127.7 k, In General, Most Cited Cases

formerly 115K130,1, 1551st30(1))
Under Alabama law damages for pain and suffering
generajly should be left to sound, discretion of jury;
however discration may be corrected for clear ab-
use and passionate exercise,

{5} Damages 115 €=7140,7

Page 3 of 11

Page 2

115 Damages
TISVIT Amount Awarded
IJSVIIE) Mental Suffertg and Emotlonat
Distross
4151140.7 k. Particular Cases, Most Cited
Cares
(Formerly 115k132(1))

Damages 115 €=7 127.11

115 Damages

TISVIt Amount Awarded

115VTI(B) Injuries to the Person
115k127,.11 k, Internal Injuries in Gener-

al, Mast Cited Casas

(Formerly 115k132(1))
Compensatory damage award of $500,000, cover-
ing pain and sufiering, for each worker claiming to
ave suffered damage aa a revult of asbestos ‘expon-
ure, was Glearly excessive; asbestosly from- whieh
claimants allegedly suffered was not particularly
painful disease, claiments had not established pain-
ful emotional distress arising out of fear of doveiop-
ing cancer in future, and average compensatory
daraage award in similar vases prior fo preseni trla]
had beon $169,190 with largést amount being
$350,000,

{6] Federnt Civil Procedore 170A 72315
170A Federal Civil Procedure

TQAXVI Now Trial
1TGAXV1(A) In Genoral
170AK2314 Partial Now Trial or Rehear-
ing
170AK2315 k. Damages, Most Cited
Cases .

Improper consolidation of asbostos exposere per-
sorial infury and wrongful death cases required new
trial on all jasues, rather than remittitur or new trial
on damage issue alone; liability had been strongly
contested in cach case, compensatory damages
wore greatly disproportionate to injury In each of
the personal Injury cases and also unsupported by
evidenos in many cases, and there was evidence
jury had failed to follow court's instructions due to

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785 F.Supp, 1448, Prod Liab. Rep. (CCH) P 13,285

complexities Introduced through consolidation,

[7] Federal Courts 1708 0813
170B Fedetal Courts
ITOBVIL Courts of Appeals
V7OBVINCS Seope, Standards, and Extent
1TOBYII(K}4 Discretion of Lower Court
170BKR13 kk. Allowance of Remedy
and Matters of Procedure in General, Mos} Cited
Cates
Trial court's decision to consolidate actions for wrial

will be overtumed only if it amounts to abuse of
discretion,

_ [8] Federal Civil Procedure 170A C=8,1

170A Federal Civil Procedurs

170A] In General

L70AI{A) In General
170Ak8 Consolidation of Actions
T70Alc8.1 k. In General, Most Cited

Cares

(ormerly 170A kB}
Consolidation of ten personal Injury lawsulis and
threa wrongful death lawsuits, involving exposure
to asbestos by workers, wes prsjudicial to rights of
asbestos manufacturers even though special meas-
ures were taken such es furnishing of notebooks to
jurors, cautionary instructions, and special interrag-
story forms; similarities of awards made to yarlous
complainants, despite considerable differsncas in
proof, and overall “exorbitant’ awards in viow of
proof offorad, indicated thet jury had not carried
‘out judge's Instructions, .

*1450 Russell W, Budd, Liss Blue, Dallas, Tex,,
S.C, Middlebrocks, Mobile, Ala., for plaintiff,
Michuel B, Kinriard, Knoxville, Tenn, J, Randolph
Bibb, Jr., Nashvilla, Tena,, for defendant,

MEMORANDUM OPINION AND ORDER,
BUTLER, District Judge.

‘These consolidated actions are before the Court on
a motion for judgmont notwithstutdiig the” yerdiat

Page 4 of 11

Page 3

or, in tho alternative, for vew trials or for remittit-
urs of damages filed by the defendants, Owens-
Ilinois, Ino, and Keene Corporation, These thirteen
separate actlons were consolidated for trial over dax
fendunts' objections, Following a fifteen day trial,
the jury retamed verdicts in favor of each lane
After careful roview of tho record, the verdicts, tho
argument of counsel and the applicable law, the
Court finds that the motion for jn.o.y, is due to be
denied but that the dafendents are entttled to a now
trial in each cago,

PROCEDURAL BACKGROUND

‘Thess actions consist of ten personal injury and
three wrongful death actions arising from the ex-
posure of cach plaintiff, or plaintiff's decedent, to
asbestos in the workplace, In the majority of oases,
expoaure allegedly occurred at Alabama Dry Dock
and Shipbuilding (ADDSCO), In each case, the
plaintiff alleged three theories of revovory: negti-
Ronee, wantonness and violation of the Alabame
Extended Manufacturers Liability Doctrine, Two of
the wrongful death actions and seven of the person-
ai injury actlons also contain olaims for'loss of con-
sortium filed by the wife and widow of the worker,
Although the defendants varied in each case, sub-
stantially the same defondants were named In cach
case, The (ssue of knowledge or state of the art was
Common to each case, ge wore the defendants’ af
finmatlve defenses, Becayse the actions involved
common questions of law and fact and in the in»
‘terest of Judicial economy, the Court consolidated
the sctions for trial pursuant to the authority of
Rule 42 of the Federal Rules of Civil Procedure,

Following a fifteen day trial, tho jury deliberated
about six hours and retumed yerdiois in favor of all
plaintiffs, In each of the eight non-cancer personal
Injury cases, the jury awarded compensatory dam-
agos of $80,000 for future medical expenses and
$500,000 for pain and suffering and punitive dam-
ages of $1,500,000 per defendent, In each of the
two cancer personal injury cesex, the jury awarded
compensatory damages of $100,000 for Future mod-

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joal expenses and $750,000 for pain and suffering
and punitive damages of $1,500,000 par defendant.
Tn each of the wrongéil death cases, the jury awar-
ded $3,000,000 in punitive damages only.""! For
each joss of consortium claim the jury awarded
$50,000.

FN1, Only punitive damages are recover-
able under Alabama's wrongful death stat-
ule, Ala.Code § 6-5-410 (1975). Lowe vw.
General Motors Corp, 624 F.2d 1373 (Sth
Cir.1980); Deaton v, Burroughs, 456 80,20
TI (Ala,1984),

LEGAL ANALYSIS
1. MOTION FOR J.N.O.Y,

[1] The evidence presented at trial does not support
a judgment notwithstanding *1451 the verdict in
any of these aotions, Ths Eleventh Ciroult hay
stated the standard to which a trial court must ad-
here when constdering a motion for Judgment nat
withstanding the verdict:

All of the evidence presented at trial must be con-
sidered “in the light and with ail reasonable infer
ences most favorable to the party opposing the mo-
ton." A motion for judgment nov, should be
granted only where “reasonable [people] could not
arrive at a contrary verdict ..” Where substantfal
conflicting evidence js presented such that reason~
able people “in the exercise of impartial judgment
might reach different conclusion, [sto}” the motion
should be denied. :

Simon v, Shearson Lehman Bros, 895 F.2d 1304,
1310 (11th Ctr.1990) (quoting Castle » Sanzamne
Weston, 837 F.2d 1550, 1558 (11th Cir,1988)),

Despite defendants' assertlons to the contrary,
plaintiffs in each onse have prosented sufficient
evidence from which & reasonnble juror could find
the defendants liable. It is unnecessary to reexam-
ine all the testimony here, Suffice {t to say that the
Court has reviewed the record and that defendants
have failed t6 look at the éviderios a¥ the Court

Page 5 of 11

Pago 4

muat, that I, in the light most favorable to the non-
moving party. Insterd, defendants have cited only
that testimony favorable to them {n most instances,
In each personal injury action plaintiff presented
evidence that ho suffered from an asbestos-related
lung disease, that he wes exposed to defendants’ as-
bestos-containing products, that each and every ex-
poanre was a substantial contributing faster to his
injuries and that he suffered damagos as a result, In
each wrongful death case plaintiff’ presented proof
that her decedent was exposed to defendants’ asbes-
tos-comtalning products end thet such exposure wes
a substantial sontributing cause of his death, in
short, the evidence is such thet reasonable persons
might have reached differing conclustons "2

FN2, However, for the reasons discussed
In Section Tl, even though plaintiffs dig
present same ovidence of Ilability in aach
case, the Court cannot say that the jury's
deoision to find in favor of tho plaintiffs
was not tainted by the prission and prefu-
dice that resulted trom the consolidation of
these avtions,

Tl, MOTION FOR NEW TRIALS

‘The Court finds that the defendants are entitled to
new trials for two reasons, First, new trials are way-
ranted in each of the personal injury actions be-
cause the compensatory damages awarded in each
Gage Were so oxcessive as to indicate passion and
prejudice on the part of the Jury, Second, the oon-
solidation of such a Sarge number of actions In-
volving both personal injury and wrongful death
resnlted in projudicial error. Although these ere
separate grounds for granting the motion for new
trial, the pyo are interrelated. +

A, Excessive Damages

[2] There are two {ssues tho Court must confront in
deciding a motion for new Ulel based on excesstve
damages: (1) whether the amount of the eward is
excessive and (2} the proper remedy to be applied,

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State substantive law govems the first issue while
federal procedural law governs the senond, Estate
of Jackson v, Phillips Petroleum Co, 678 F.Supp,
1142, 1152 (S,D.Ale,1987),

Damages are deemed to ba excessive under
Alabama law “ifthey shock the judicial conscience
or are so great as to indicate bias, passion, or proju-
dice.” Southern Life & Health ins, Co. ¥. Smith,
518 So2d 77, 82 (Ala.1987), The compensatory
damages ewarded sach plaintiif in this action not
only shock the judicial consetence but blso por
suade the Court that the jury verdicts woro prejue
diced by the joinder of al! these actions, The cam-
pensatory damage awards were divided into two
parts: future hospitalization and pain and sutiering,

[3] Tho award of future medical expenses is clerrly
excessive and unsupported by the ovidence in the
majority of personel injury orses, The jury awarded
$80,000 to $100,000 in each persopal infury case
for fiture medical expenses, However, in only three
of ton casos did plaintiff: prove such amounts.
Plaintiffs offered proof of Arture*1452 medical ex-
penses fhrough their medical sxperts, that exch
plaintiff would require annual medical monitoring
tor the remainder of his life as a remult of his asbes-
tos-related disease or injury at a cost of $200 to
$500 per year, Thus, the maximum recovery per
plaintiff for medical monitoring should range from
$4,050 to $10,200 depending upon plaintifs age
and life expectancy, For seven of the ten
plaintifis these are the only future medical expenses
proven,

FN3. These amounts represent the maxim-
um medical monitoring costs ($500) muiti-
plicd by the life expectancies of the oldest
and youngest plaintiffs, respettively (8.1
years and 20.4 years),

Th addition to thesa medical monitoring expenses,
three plaintiffs, James Weaver, Jesse Benjamin and
Jossph Bruner, offered testimony that they were
likely to incur hospitalization costs in the future.
Their medical experts testified that because their

Page 6 of 11

Page $

asbestos-telated discasa Had shown signs of pro-
eresuton, these three plaintiffs were likely to suffer
from complications such as tung infections which
would roquire hospitalization, Mr, Weaver's export
estimated tho’ total cost of future hospitalizations as
a result of thess complications to be $50,000 to
$70,000. Dr, Gaeton Lotino, who testified on behalf
of Mr, Bruner and Mr. Benjamin, ostimated the fi-
ture hospitalization costs for those plaintiffs to be
$80,000 to $100,000. Therefore, the awards of
$80,000 to Mr. Bruner and £100,000 to Mr. Ben-
Jamin wete supported by ths evidence, Howsver,
the $60,000 awarded to Mr. Weaver still oxceeds
his proof of future medical expenses (870,000 for
future hospitalization expenses and $4,150 for mad
ical monitoring ***), °

FN4. This amount was calculated by mol-
tiplying the maxitmum medical monitoring
costs ($500) times the plaintiffs lif ex-
pectaney (8.3 yours). .

There was no testimony on behalf of any of the oth-
er soven personal injury plaintiffs that they were
likely to be hospitalized in the futura as a regult of
theiy asbestos-related disease or injury, The dam-
ages awarded these plaintifis oxceeds the proof of

" future medical expensea- by a minimum of almoat

$70,000, Therefore, the Conrt finds the damages
awarded for future modical expenses in the remain«
ing seven cases were grossly excessive,

[4] Likowlse, the damages awarded for pain and
suffering in each of the personal injury actions was
sxoessive. The Court is mindful that damages for
pain and suffering generally should be “lef to the
sound discretion of the Jury.” Durham vy. Stns, 279
Ala, 516, 517, 187 So2d 558, 559 (1966), The
jury's discretion is not unlimited, however, and may
be corrected by the court “for clear abuse or pas-
slonate exercise.” Id. Although rate, there are in
stances where Alabama courts have found damages
awarded for pain and suffering to be excessive, ,
Eg, Consolidated Frelghtways v, Pacheco-Rtvera,
524 So.2d 346 (Ale, 1988); Coca-Coiq Boitling Ca,
v. Parker, 451 S0.2d 786 (A}e.1984),

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Of course, there fs ‘no precige formula for determin-
fug when un award for pain and suffering iy excass-
ive, In making this determination, tho Court tnkes
into consideration the testimony most favorable to
the plaintiff: as to the nature and extent of the dam-
fgoa inflicted and general knowledge of verdicta
awarded in this district for comprrable injuries as
well as the court's own knowledge and experience,
Pacheoo-Rivera, 524 So,2¢ at 352,

[5] Bach plaiatiffe’ testimony regarding pain and
suffering was remarkably similar and can be di-
vided into three imajor categories: curtailment of
activities dus to shortness of breath, mental anguish
for fear of cancer and, In a few cases, past or future
pain and suffering dus to asbestos-related illnesses,
Without exception, the primary complaint of each
plaintiff was thet he could no longer do the kind of
things around the house or yard (or engage in reors-
ational activities) as he used to because of his short-
ness of breath. Some complained that thelr sex lives
were affected, All but two of the plaintiffs avs over
the uge of sixty, suggesting that the aging process
Itself would result In some ourtaliment of these
activities, Several pleintiffy suffer from other ill
nesses which also contribite'1453 to the limite
tions on their activities, For example, Tulsie
‘Weaver is legally blind and suffers from dinbotes,
John Wilson is partially paralyzod and cannot speak
as the reault of a opr accident, Joseph Bruner sutiers
from chronic obstructive pulmonary disease, a
smoking-related {ilness, heart problems and black~
outs, al] of which are unrelsted to asbestos expos-
we. Most of the plaintiffs had pormal pulmonary
function, and none of the plaintiffs was determined
by any medical testimony fo have suffered any da-
gre of permanent disability due to shortness of
breath,

The fear of cancer Is, in the Courtla opinion, the
most significant’ siement of suffering in sach of
these cases, Such fear, however, must be reasonable
and genuine and will, of course, vary with the Indi
vidual, In other words, damages may be awarded
only if a pialntif? does have a foer af cancer that

Page 7 of 11

Page 6

causes mentai anguish, ret simply bocayse plaintiff
could have a fear of canoer. In addition, it 1s only
the mental anguish that is compensable, not the
Probability of contracting cancer, A few plaintiffs,
such as Mr, Bronay and Mr, Wilson, presented test{-
mony that they suffered from periodic episodes of
depression dus to thelr foar of contracting cancer,
Although their depression resulting from the fear of
cancer soemad worse than that of othor plaintiffs,
uelther Mr, Bruner nor Mz, Wilson required paychi-
atrio care, nor wore they prevented from carrying
on their daily attivities, Most of the other plaintiffs
aiuply testified thet they worried about the future
and the possibility of gelting oancer, without giving
any specific examples of how that fear has affected
thom, At feast one plaintiff, Jesse Benjamin, did not
fealify at all concerning fear of cancer.

Physical pain end suffering cannot be considered an
element of damaye for most of these plaintiffs be-
cause there was no evidence offered that thre ia
any pain associated directly with asbestosis. Jesse,
Benjamin end Thomas Brown presented evidence
of past physical pain and suffering because of they
had both swffered from cancer in the past; however,
both had fully recovered from onncer operations,
Tho jury apparently recognized this injury and
awarded them an edditional $250,000 in pain and
suffering damages, in addition, plaintlifs Benjamin,
Jemes Weaver and Joseph Bruner presented testi-
mony that their asbestos-rolated diseaves had shown
signs of progression which indicates the future Hike-

hood of painful complications, such as lung infeo-
tions.

Eyen those plainitffs who presented the most com-
pelling tastimony regarding pain and suffering
would bs adsquately cornpensated with an award
substantially joss than the amount awarded by the
jury. For exemple, Mr, Bruner presented substantial
testimony as to all elements of pain and suffering,
Untike most plaintiffs who were retired, Mr. Bruner
‘stifled that he had beon laid off work, but had not
‘boon called back because of his health problema,
most of which ere related to chronic obstructive

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pulmonary disease caused by smoking, At sixty-
ong, Bruner was one of the youngest plaintiffs, He
gave compelling testimony regarding his fear. of
cancer, especially in Hght of the fact that he bad
children living ai home, He presented medical evid-
ence that his disease was likely to progross and that
he was likely to sut¥er from lung infectlons In the
future, although the severity and duration of such
infections depended to a great extent on how well
plaintiff follows his treatment plan.

Even in light of this evidence, half a million dollars
in-compsnsatory damages for these Injuries is cxor-
Bitant. Although the iiury is permument, it is not
Permanently painful, Mr. Bruner may  sxperience
pain associated with Ing imfoctions, but the evid-
ence clearly established that those infections acs
treatable and the pain will subside as the infectlon
is cured, Thus thers Is no chronic pain, Although
Mr, Bruner has been required to curtail activites as
a result of shoriness of breath, he Is sti] able to
function and to carry on his daily activities,
Moreover, he was able, ad were all other piaintlffs,
to sit through the entirs fifteen day trial, adhering to
the Court's sometimes arduous trial schedule, Foar
of cancer is extramely difficult to value; however,
is just that, a foar, *1454 While plaintifis! anguish
end fear is understencable and compensable, it docs
not appear overwhelming or debilitating,

‘The oxcessiveness of these compsnsetory damage
awards becomes even more apparent when com-
pared with jury awards in other asbestos personal
injury cases tried in this district, The average com-
pensatory damage award prior to this trial was
$169,100" The largest amount of sompensut-

ory damages ever awarded prior to this trinl was
$350,000,"N6

FNS. It should be noted that this figure ine
cludes mvyards in Hudgens y. National
Gypsum Co, No, 89-0772, in which nine
personal injury actions were consolidated
and tried before the Hon, Alex T, Howard,
Chief Fudge, immediately prior to the trial
of these actions, Motions for new trials or

Page 8 of 11

Page 7

remittiturs are pending In those actions. If
those actlons are excluded, the average is
$86,291,

FNG. This award occurred in Coleman vy.
National Gypsum Co., one of nine conso)-
ideted cases described in footnote 5.

[6] When confronted with an excessive damage
award the Court hus several options,

If the passion, prejudica, caprice, undue sympathy,
arbiiveriness, or moro teints chly the damage award
and not the liability assossment, the proper resparise
is a Temittitur or a new irial addressed to damages
alone, But, if it appears that the improper jury ac-
ton, in reesonable probabillty, affected both the |}
ability and daniages issues, then a new trial as to
both issues must be ordered.

Edwards v. Sears, Roebuck & Co, 512 Pad 276,
282 (th Ca1975). Adwardy offers some guidance
in determining whether the lability as well as dam-
ages isaues were tainted, In that case the appellate
court found that a complete new trial was required
because: (1) the Hiability issie waa closely con
tegted, (2) counss] made Improper arguments to the
fury, (2) the trial court found the award of damages
to be .grossly excessive, and (4) the jury wes
swayed by passion and prejudice and failed to re-
spond to the trial court's Inatructions, fa, at 283.

Because most of the same factors ere present In this
caso, the Court finds that a now trial is neoessery 2s
to all {ssuos, Pirst, Jiability was strongly contested
in each caso, including the wrongful death cages.
Defendants not only contested the medical causa-
tion of cach plaintiff's Injurtes but also contested an
issue common to ali plaintiffs, state of the art oF
foresevrbility, Seccnd, as discussed above, the
compensatory damages in most cases were not only
groatly disproportionste to the injury in each of the
personal injury onses but also onsupporisd by the
evidence in many cases? Finally, and as dly-
enased below, it appears that the consolidation of
thess. actions was prejudicial and that the jury failed

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‘785 F.Supp, 1448, Prod. Liab,Rep, (CCH) P 13,285

to follow the Court's instructions ta sonsider each
case separately,

FN. The Court finds it unnecesanry to
anclyzo tho punitive damages under the
framework sot forth In Green O# v
Horusiy, 539 So2d 218 (Ala.1989) and
Hammond y, City of Gadsden, et al, 493
$0.20 1374 (Ala.1986) at this time, The
amount of compensatory damages alone {s
80 excessive that when considered in light
of the factors enumorated in Sdwards,
leads the Court to coneluds thet the Iabli-
ity determinations, not just the damage
awards were tainted, and must be sot aside,
OF course, if the llabitliy dotemsinations
fail so must the punitive damage awards,
Likewise, it Is unnecossery to soparately
analyze the loss ef consortium claims since
such claims ars based on derivative tiabil-
ity. See Mattison v, Kirk, 497 So.2d 120
(Ala, 1986),

B. Consolidation

(7] The prsjudiclal offect of the consolidation of
‘these actions fs not only indicative that the Hnbiliy
determinations were tainted but Is also in ttself a
ground for granting the motion for new trial, See
Arnold y, Eastern Air Lines, Ine, 712 F.2d 899 (4th
Cir), cert, denied,460 U.S, 1102, 103 S.Ct 1861,
76 LEd.2d 366 (1983) and 464 U.S, 1040, 104
5.Ct. 703, 79 L.Bd.2d 168 (1984) (New trial gran-
ted due to prejudicial effect of consolidation of ac-
fions against alrlines and their insurers), A. trial
court's decision to consolidate ‘actions for trial will
be overtumed only if it emounts fo abuso of disore-
tion, Hendrix y. Rapbesias-Manhattan, 776 F.2d
1492 (11th Clr.1985), The combination of factors
present in this instance [ead the Court to the over-
whelming *1455 conclusion that the consolidation
of those actions was unduly prejudicial.

[8] This Court recognizes thet consolidation of as-
estes cases for trial Is comman, See, eg, Johnson
¥. Celotex Corp,, 899 F.2d 1281 (2d Cir.1990)

Page 9 of 11

Page 8

(upholding the consolidation of twa asbestos ac-
tions) (and onses cited therein), In Hendrix, the El-
eyenth Circuit upheld the consolidation of four as-
bestes aotlons for trial where the plaintiffs had sim-
ilar exposure and work histories and each suffered
from asbestosis, In a decision to consolidate the
court must consider:

[W]hether the spovific risks of prejudice and pos-
sible confusion [are] overborne by the risk of in-
consistent adjudication of common factual and teg-
al iasuos, the burden on partles, witnesses and avail-
able Judiclal rasowrces posed by imuttiple lawsuits,
the length of time required to conclude multiple
sults es against @ single one, and fhe relative ex-
pense to all concerned of the single-triat, multiple-trl-
a] alternatives.

Hendrix, 776 F.2d at 1495 (quoting Arnold v, Baste
em Air Lines, Inc, 681 F.2d 186, 193 (4th
Cir,1982), The trial court “must also bear jn mind
the extent to which the risks of prejudice and con-
fusion .., can be alleviated by utilizidg coutlonary
instructions to the jury during the trial and oon-
trolling the manner in which the plaintiffs’ claims ...
bra submitted to the jury for delibaration,” Ja,

It Is evident (unfortunately, in hindsight) that des-
pite all the precautionary measures taken by the
Court (2.g., juror notébooks, cautionary instraotions
before, during and after the presentation of svid-
ence, special interrogatory forms) the joint trial of
auch a large number of differing cases both con-
fused and prejudiced the jury. This confusion and
prejudice Is manifest in the Identical damages awar-
ded in the non-cancer petsonat Injury cases and in
the cancer porsonal injury cases, thé relatively short
deliberation time es well as in the inflated amounts
of many of the damage awards and the lack of evid-

once supporting some o? the damages [n several
CHSOS.

It appears that the Jury simply lumped the personal
Injury plintiffs into two categories and gayo
plaintiffs in cach category the same uniount of com-
pensatory damages no matter what their injurios,

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785 F.Supp, 1448, Pred,Llab,Rep. (CCH) P 13,285

Two of the personal injury plaintiffs, Thomas
Brown and Jesse Benjamin, had in the past suffered
from cancer and were diagnosed as suffering from
asbestosis, Bach of those plaintiffs received
$100,000 for future medical exponsea and $750,000
for pain and suffering,

The remeining persone) injury plaintiffs each
presented testimony that they suffered from rsbes-
tos-related lung disease of verying severity, Hach
was awarded $80,000 for future madical expenses
ud $500,000 for pain and suffering. It ls incon-
ceivable to the Court that a properly functioning
jury could have awarded the seme amount In each
casa, Compare, for exaniple, plaintiffs! ovidence as
to Georges Brown with Joseph Bruner, whose injur-
jes are discussed above, Viewing ‘the evidence in
the light most favorable to the plaintiff, Brown was
diagnosed with mild asbestosis, x-rays revealed
mild scarving consistent with asbestosis, pulmonary
function tests show no impairment In Brown's hing
fumetlon, At age 59, George Brown at the time of
trial wes still working forty hours a week as a
shipyard worker, an occupation which requires a
good doal of physical stamina, By his own physk
clan's testimony, his disease is unlikely to progress
and his fife expectancy has aot been diminished by
his diseese, His major complaints are that “when I
gat home from work I'm wom cut” and ha cannot
hunt and fish lika ho used to and cannot do things
around the house like he used to, Those complaints
arp hardly surprising. considering his age and work
schedule, Brown also testified thet he worrles about
the possibility of contracting cancer,

A comparison of the awards in thase cases with
awards in similar asbestos cases tried in this disirlet
also supports the conclusion thet the jury filled to
consider each case separately, Prior to the tris! of
ths caves at hand, five groups of asbestos cases had
been consolidated and tried ¢o verdict in this dis»
trict, Identical verdicts were the exceptlon, rather
than the rule in *1456 these cases, For oxemple, in
Foster, et al v, Calotex, No, 87-0693 in which four
cases were consolidated for trial, the jury awarded

Page 10 of 11

Page 9

compensatory damages of $6,500, $161,353,
$128,558 and $6,500, In McDuffie, et al v, Calotex,
No, &7-541, the Jury fond in favor of the defend-
ais in cach of the four oases. In Allen y. Celorex,
No, 87-1039, in which three personal injury actions
werg consolidated for trial jury awarded 950,000 in
compensatory damages and $50,000 in punitive
damages to one plaintiff but found in favor of the
defendunis in the other two cases, In Cook y,
Celotex, No, 87-807, ihe jury awarded compenyat-
ory damages of $90,000, $130,000, $125,000 and
$125,000, respectively, in the four cases consolid-
aled for trial, Finally, in Audgeng v, Natlonal
Gypsuns Ca., No, 89-0772, Judge Howard consolid~
ated nine personal injury actions for trial, The jury
awarded the following compensatory damages jn
each case; $275,000, $325,000, $250,000 (2 oases),
$225,000 (4 cases), and $350,000" It is aleg
worthy to note that ail of these trials Involved only
personal injury claims and, with the exceptlon of
the Hudgens group, no more than foar eases have
been tried together. it appears, therefore, that when
fewer cases are consolidated for trial, the jury is
better able to consider the oases separately and re-
turn verdicts bused on the facts of each case,

FN8, Aa noted above, a motion for new trie
el or romittttur is pending in thege actions.

Farther evidence that the jury failed to consider
each case on its own merits is the relatively short
deliberation time in comparison with the Jength of
trial and the volumes of evidence presented. After a
‘ifteen day trial, tho jury deliberated approximately
six hovrs, During this time the jury was required to
determing lability In each of thirtesn cases, com-

, Pensatory damages as to ten plaintiffs, joss of con

sortlum as to nihe plalntitfs, and punitive damages
as to each defendant,

Tt fs not this Court's opinion that asbestos actions
can.never be consolidated for trial, Rather, consol-
idation simply did not work in this instance, The
number of cases consolidated, the amount of avid
encs to be considered, the differing injuries in-
valved and the unique aspects of Alabema’s wrong-

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783 F.Supp, 1448, Prod, Liab,Rop, (CCH) P 13,285

fal death strtute ail contributed to make consolida-
tion of these cases unworkable,

After considering the combination of thee factors,
the Court fs compelled to grant defendants’ motlon
for new trials as to all actions, including the actlons
for wrongful death, Plaintiffs had argued that even
if @ new trial is granted ai to tho porsonal injury
plaintiffs, the wrongful doath verdicts should stand,
Relying on an atgument in dofondants' briof,
plaintitta contend that, if anything, the wrongiul
death actions prejudiced the jury's decisions as to
the porsonal injury actions, This is pure spveula- tion,

Whon the prejudice results irom consolidation, the
Court is not fres to conclude that the error affected
only some cases and not others.

[UE one cannot say, with fair assurance, after pon-
dering ell that happened without stripping the erro-
neous action from the whole, that the judgment waa
ot substantially swayed by the error, ‘it is im-
possible to conclude that substantial rights were not
affected,

O'Rear » Fruahenf Corp, 534 B.2d 1304, 1308
(Sth Cir.1977), Liability was strongly contested in
all of the wrongful death cases as it was in the per
sonal injury cases, Because wrongfu} death dam-
ages are punitive In nature, the prajudice Is not ap-
parent from the face of the yerdicts themselves,
However, given the nature of the error and preju-
dice in this instance the Court osnnot conclude that
fhe judgment in the wrongful death cases was nat
swayed by the error,

CONCLUSION

The decision to grant new trials has not been made
lightiy. The Court has spent many months review~
ing the triel transcript, studying the applicable law
and weighing the options available, This Coyrt,
when feced with the problem of nearly one hundred
ponding asbestos cases on its docket, end more
surely to come, made a decision, The congestion

Page 11 of 11

Page 10

these cases caused In thls district for all civil litig-
ants gives one a *1457 skewed view of how fo re.
solve the problem, The
“Try-as-many~as-you-can-at-one-time” approach ts
great If they all, or most, settle; but whon they
don't, and they didn't hore, thirteen shipyard work-
erg, thelr wives, or executors if they have diod, got
a change to do something not many ather civil ‘itig-
ants can do-overwhelm a jury with evidence, Evid-
ence thet would not have been admissible in any
single pleintiff's case -had these cases been tried
scparstely, As the evidence unfolded in this case, it
‘became more and more obvious to this Court that a
process had been unleashed that left the jury the
impossible tusk of being able to carefully sort out
and distinguish the facts and jaw of thirteen
plaintifis' cases that varied greatly in so meny crit.
ical aspects.

In the finu) analysis, the Court is convinced that the
defendants did not recoive a fair irlal, Because the
jury verdict wes not only exceayive but also tainted
by prejudice, the Court i$ compelled to grant new
trials In each cass.

Accordingly, it is ORDERED that defendants’ mo-
tion for new frigls bs and hereby is GRANTED, It
is FURTHER ORDERED that defendants’ motion
for judgment notwithstanding the verdict is DENIED.

S,D.Afa,,1992.
Cain v, Armstrong World Industries
‘785 F.Supp, 1448, Prod.Linb.Rep, (CCH) P 13,285

END OF DOCUMENT

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Ta F.3d 1003
72 F.3d 1003, 33 Fed. R.Sery.3d 79

re
Consort y, Armstrong World Industries, Inc.
C.A2 (NY),1995.

United States Court of Appeals, Secand Circuit,
‘John CONSORTI & Frances Consorti, Plaintifts-
Appellees,

v.

ARMSTRONG WORLD INDUSTRIES, INC,
formerly Imown as Armstrong Cork Ce.; Combuse
tion Engineering, Inc., at al,, Defendants,
Owens-Coming Fiberglay Corp., Defendant-Appel-
Jant,

*No'857; Docket 94-7501,

Argued Nov, 14, 1994,
Deolded Aug. 28, 1995,
Amended Deo, 22, 1995.

Worker brought products liability action agalnst
manufacturer of asbastoy pipe-covering products,
seeking damages for injuries suffered due to expos
ure to asbestos, and case was consolidated with oth-
or casey, The United States District Court for the
Southem District of New York, Robert W. Sweet,
i, entered Judgment for plaintiffs, and defendant
appealed, The Court of Appeals, Leval, Cironit
Judge, beld that: (1) plaintiff's wife could not main-
tain omuse of action for loss of consortiym; (2) can
solfdation of orses did not cause such confusion or
prejudice as to warrant reversal; and (3) damage
award of $12 million for pain and snifering to
plaintiff was meterial deviation from award deemed
reasonable under New York lew.

Affirmed in part and vacated in part.
West Headnotes
[1] Federal Courts 170B C813

- 170B Federal Courts

170BVTU Courta of Appeals
17OBVILAC) Scope, Standards, and Fxtont
170BYVILICK)4 Discretion of Lower Court

Page.2 of 18

Page 1

1TOBK813 kK, Allowance of Remedy
and Matters of Procedure in General, Most Cited
Cases
‘When issue for appellate, court is whether trial
court's decision to consolidats exceeded its discra-
tion, question remains whether consolidation
caused such confusion or prejudice as to render jury
incapable of finding facts on basis of evidence,

[2] Federal Civil Procedure 170A €=>8.1

Y70A Fedaral Civil Procaduro
179A] In Genoral
{708i(A) In Genie]
1TOAKS Consolidation of Actions
T7OAK8.1 k, Ta General, Most Cited

Cases
Federal Civil Procedure 170A €=~1953

170A Faderal Clyil Procedure
TIGAXY Trigi
TTOAXYV(A) In General
T70AK1953 k. Separate cr Consolidated

‘Trials of Different Actions, Most Cited Cases
Consolidation of products ability actions that
arose from oxposure to psbestos products did not
prevent jury from rendering verdicts based on evid-
ence as related to euch independsnt claim and so
consolidation was proper; jury was provided with
speclalized notebooks with photograph of cach
plaintif®, aocompantod by undisputed biographical
informatlon, jurors were encouraged to take exteris-
ive notes during trial, rounsel used charts to help
jury distinguish among pleinilffs' exposure histar-
ies, judge gave numerous cautlonary and limiting
instructions, and verdict forms guided jury step by
step through various Issues it needéd to consider
and resolve,

[3] Federal Courts 1708 €0415

1708 Federal Courts
I7QBV1 State Laws as Rules of Decision
170BV1(C) Application to Particular Matters

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72. F.3d 1003, 33 Fed.R.Sery.3d 79

170BK415 k, Damages, Interest, Costs end
Fees, Most Citod Cases
Determining whether damage award for pain and
suffering is excessive is issue of substantive rights,
and so is governed by state law.

[4] Federal Courts 1708 2872

1708 Federal Courts
{70B VIII Courts of Appeals
TOBVITICK) Scope, Stendards, and Extent
I7OBVILCK)S Questions of Pact, Verdicts
and Findings
V70Bk870 Particular Issues and Ques-
tions
T70BK872 kk, Inadequate aad Ex-
cessive Damages, Most Cited Cases
Under New York law, jury verdict may not exceed
het emount which would devlate materially from
reasonable compensation, which requires reviewing
sourt to determine range it regards as reasonable,
and to determine whether partioular jury award de-
viates materially from that range, taking corective
action ss it doss; “material deviation” #rom reason-
ableness is less than that deviation required to find
award so excessive as to shock conselence,
N.Y MeKinney'a CPLR 5501(c),

[5] Federal Courts 170B €=9782,

1708 Federal Courts
T7OBVIMI Courts of Appeals
I7OBVINCK) Scope, Standards, and Extent
L7OBVIMICK)] In General

170BK752 k, Matters or Evidence Con-
sidered, Most Cited Cases
Under Now York law, on review of whother dam-
age award was excessive, Court of Appeals will
look to other jury awards condoned by courts of
New York, recognizing that New York appellate
courts regard prior awards es not binding but in-
structive,

16] Damages 115 @-7127,11

115 Damages

Page 3 of 18

Page 2

SV Amount Awarded :
11 5V1K(B) Injuries to the Person
T1SkI27.31 k, Titersal Injuries in Gener-

at, Most Cited Cases

(Formerly 115k132(1))
Damages of $12 million awarded to ‘plaintiff in
products lability action that arose from exposure to
aubestos deviated materially from what is deemed
Teasonable under New York lew; and $0 warranted
new irial on issue of damages for pain and suffer
ing, unless plaintiffs accepted remittiur of award to
$5.5 million; although plaintiff endured enormous
suffering, pattern of prior similar oases rovealed
that range of damage awerds from approximately
$1 million to maximum of $3 milion was deemed
reasonable under Now York law,

|7] Fedoral Civil Procedure 170A 51973

170A Fedoral Civil Procedure
1FOAXY Trial
IWAXV(A) In General
, 170Ak1970 Counsel's Conduct and Argu-
ments
iTOAK1972 k, Statements as to Facts,
Commente and Arguments, Most Cited Cases
Counsel's specifying target amounts for jury to
award in damages ts disfavored; such suggestions
anchor jurors! expectations of felr award at place
sot by counsel, rather than by evidence,

[8] Federal Civil Procedure 170A €-71969

170A Federal Civil Procedure
170AXY Trial .
LTVAXV(A) in General
170AK1969 k, Judge's Remarks and Con-
duct, Most Cited Cases
Judge's compliment of jury after fury returned its
first verdict did not warrant mistrial on besis that
his encouragement of jury was misunderstood as
endorsoment of generosity of its verdict, since

judge gaye curative instruction after counsel objec-
ted.

19} Federal Civil Procedure 170A €=72337

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72 F.3d 1003, 33 Fod. R.Serv,3d 79

170A Federel Civil Procedure
ITOAXVI New Trial
170AXVI(B) Grounds

170AK2337 kk, Jury; Disqualification;
Misconduct of or Affecting, Most Cited Cases
Juror’s mentioning during jury deliberations that
one non-party defendant possessed $1 billion fund
fo pay attorney fees to Aght asbestos litigation
cases did not warrant new trial, in light of trial
court's finding that any well-informed citizen could
possess general knowledge about that defendant,
and fact that report from ‘juror was not prejudicial
to defendants,

{10} Evidence 187 C2718

157 Evidence
157V Best and Secondary Byidence

4157k180 Preliminaries to Admission of Sec-

ondary Evidence
1S7k181 i. In General, Most Cited Cases

Asbestos manufacturer failed to introduce comipu-
terized list, or make it available to court, or coun-
sel, thet was used for stunmary evidence that cam-
pantes had purchassd few asbestos-containing
products from asbestos manufacturer, and so sum-
mary evidence wes not admissible in products Nab-
ility action against manufacturor thet was based on
harm from.exposure to asbestos,

*1004 Steven J. Phillips, New York City (Mosle
Mainon, Robert 1, Komitor, Aleni Golenski, Levy
Phillips & Konigsberg, New York City, of gounsel),
for Plaintiffs-Appellees,

William. G, Ballaine, New York City (Mark S,
Landman, Joamma L., Watman, Siff Rosen, New
York City, of oounsel), for Defendant-Appellant,

Before; NEWMAN, Chlef Judge, ALTIMARI and
LEVAL, Circuit Judges.

LEVAL, Cirouit Judge;

Owens-Coming Fiberglas Corporation (“OCF”), a
fabricator of asbestos plpe-coverlng products, ap-
peals from Jury verdicts in favor of John Consorti, a

Page 4 of 18

Page 3

pipe insulation worker who developed mosothe-
lioma as the result of exposure to asbestos dust, and
his wife Frances for loss of consortium, The tru! ju
the Southern District of New York before Robert
W. Sweet, Aidge, which consumed 25 trial days,
consolidated the claims of four plaintiff couples
against numerous manufacturers of asbestos
products. The jury rendered yerdicts for the
plaintiffs totalling in excess of $47 million, OCF's
main claims on apposl are; (1) that the four cases
should not have been consolidated; (2) that the $12
mailllon award for John Consorti's pain ahd suffer-
Ing was oxvessive; and (3) that Frances Consort
had no olaim under New York law for loss of oon
sortium because John's noxious exposure occurred
prior to their marriage, OCF also challenges tho
sufficiency of evidence on vertous points, and me
merous rulings made at trial,

We certified the question of Mrs, Consortl's entitle.
ment to suo for joss of consortium to the New Yorlc
Coutl of Appeals, *L00SConsort} v, Owens-Corn-
lng Fiberglas Corp, 45 F.3d 48, 49 (2d Cir,1995),
On Ostober 24, 1993, the Court of Appeals ruled
that ths facts proved do not give rise to a cause of
actlon for loss of consortium under New York law.
Consartl vy, Owens-Corning Flbarglas Corn,