Exhibit,Appendix: CHARLES HUSBAND VS. ASBESTOS DEFENDANTS (B*P) AS REFLECTED ON EXHIBITS

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                                John R. Brydon [Bar No. 83365]
George A. Otstott [Bar No. 184671]
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: service@bhplaw.com

Attorney for Defendant
UNION CARBIDE CORPORATION

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

MAR 02 2012

Clerk of the Court
BY: JUDITH NUNEZ
Deputy Clerk

SUPERIOR COURT - STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

TN RE: BRAYTON GROUP 581 AND 582
ROBERT A. LINDSEY, SR,,
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BP),
Defendants.

(ASBESTOS)
Case No: CGC-10-275492

COMPENDIUM OF OUT-OF-STATE
AND FEDERAL AUTHORITIES IN
SUPPORT OF OPPOSITION OF
DEFENDANT UNION CARBIDE
CORPORATION TO PLAINTIEFS’
MOTION TO CONSOLIDATE THE
REMAINING ASBESTOSIS CASES IN
GROUPS 581 AND 582 FOR TRIAL
(Part 1 of 2)

[Filed Concurrently With Opposition;
Declaration of Thomas J. Moses]

Date:

Time:
Dept.:
Judge:

March 9, 2012

10:00 a.m.

608

Curtiss E.A. Karnow

JAMES NASH,
Plaintiff,
vs.
ASBESTOS. DEFENDANTS (BP),

Defendants.

(ASBESTOS:
Case No. CGC-09-275414

-L

COMPENDIUM OF OUT-OF-STATE AND FEDERAL AUTHORITIES IN SUPPORT OF DEFENDANT

UNION CARBIDE CORPORATION'S

OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE THE

REMAINING ASBESTOSIS CASES IN GROUPS 581 AND 582 FOR TRIAL(ASBESTOS)
EMILIO VALDIVIA, Case No. CGC-09-275311

Plaintiff,
vs.

ASBESTOS DEFENDANTS (BP),

Defendants.
(ASBESTOS)
RONALD HEVENER, Case No. CGC-08-274851
Plaintiff,
vs.
ASBESTOS DEFENDANTS (BP),
Defendants.
(ASBESTOS)
CHARLES HUSBAND, Case No. CGC-09-275098
Plaintiff,

vs.
ASBESTOS DEFENDANTS (B“P),

Defendants.

Exhibit 1: Cain v. Armstrong World Industries (S.D. Ala. 1992) 785 F. Supp. 1448
Exhibit 2: Consorti v. Armstrong World Indus., Inc. (24 Cir, 1995) 72 F.3d 1003
Exhibit 3: Hendrix v. Raybestos-Manhattan (11" Cir. 1985) 776 F.2d 1492

Exhibit 4: Illinois Central Railroad Company v. Gregory (Miss. 2005) 912 So.2d 829
Exhibit 5: In re Brooklyn Navy Yard Asbestos Litigation (2"4 Cir. 1992) 971 F.2d 831
Exhibit 6: In re Consolidated Parlodel Litig. (D.N.J. 1998) 182 F.R.D. 441

Exhibit 7: In re Ethyl Corp. (Tex. 1998) 975 S.W.2d 606

Exhibit 8: In re Repetitive Stress Injury Litg. (2"4 Cir. 1993) 11 F.3d 368

Exhibit 9: In re Shell Oil Co. (Tex. 2006) 202 S.W.3d 286

2

COMPENDIUM OF OUT-OF-STATE AND FEDERAL AUTHORITIES IN SUPPORT OF DEFENDANT
UNION CARBIDE CORPORATION'S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE THE
REMAINING ASBESTOSIS CASES IN GROUPS 581 AND 582 FOR TRIAL,Exhibit 10:
Exhibit 11:
Exhibit 12:
Exhibit 13:
Exhibit 14:
Exhibit 15:

Exhibit 16:

Exhibit 17:

In re Van Waters and Roberts, Inc. (Tex. 2004) 145 S.W.3d 203

In re Welding Rod Fume Prods. Liab. Litig. (N.D. Ohio), 2006 WL 1869548
Johnson v. Celotex Corp. (204 Cir. 1990) 899 F.2d 1281

Katz v. Realty Equities Corp. of New York (2 Cir. 1975) 521 F.2d 1354
Malcolm v. National Gypsum Co, (2° Cir. 1993) 995 F.2d 346

North Am. Refractory Co. v. Easter (Tex. App.-Corpus Christi 1999) 988 S.W.2d
904

Owens-Corning Fiberglas Corp. v. Martin (Tex.App.-Dallas 1997) 942 S.W.2d
712

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

3.

COMPENDIUM OF OUT-OF-STATE AND FEDERAL AUTHORITIES IN SUPPORT OF DEFENDANT
UNION CARBIDE CORPORATION’S OPPOSITION TO PLAINTIFFS’ MOTION TO CONSOLIDATE THE

REMAINING ASBESTOSIS CASES IN GROUPS 581 AND 582 FOR TRIALi
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i‘785 B.Supp. 1448 -
785 F-Supp. 1448, Prod.Linb Rep, (CCH) P 13,285

e
— Caley: Annatrong- Workd-Industries---—-
5.D.Ala,, 1992,

United States District Court, 8.2, Alabama, South-

dra Division,
CAIN, eta.

¥.
ARMSTRONG WORLD INDUSTRISS, et el,
WBAVER, at al,

ve
ARMSTRONG WORLD INDUSTRIBS, et al,
HICKS, ete,

vw
ARMSTRONG WORLD INDUSTRIBS, et al.
BOLEN

Ve
ARMSTRONG WORLD INDUSTRIES, ef al,
CLEMENTS, et al.

Ye
ARMSTRONG WORLD INDUSTRIES, etal,
James WEAVER, et al,

%
ARMSTRONG WORLD INDUSTRIES, of ah.
BENJAMIN, of al.

¥.
ARMSTRONG WORLD INDUSTRIES, et al,
. BROWN, et al,

vs
ARMSTRONG WORLD INDUSTRIES, etal,
Willard BROWN, et al.

vs
ARMSTRONG WORLD INDUSTRIES, of al,
Thoms BROWN, of al.

ve
ARMSTRONG WORLD INDUSTRUBS, ct al,
WILSON, otal,
vw
ARMSTRONG WORLD INDUSTRIRS, et al,
BRUNER, et al,

w .
ARMSTRONG WORLD INDUSTRIKS, of al,
BROOKS

Page Zof 1)

Page J

We
~~ARMSTRONG-WORLD INDUSTRIES; etapa
Nos, CV-87-1172, CV-87-1179, CV-87-1180, CV
STAID, CV-BT-AZ21, CV-B7-1245, CV-81-1256,
CV-BMIZID, CV-B)-1285, CV-87-1298, CV-
87-1299, CV-87-1808 and CV-BT-I3I6.

Feb, 18, 1992, : i

. Ten personal injury and. three wrongfid death ao :
tions, arising out of worker expesurs to asbestos,
‘wore brought against various asbestos menufactir-
or. Marufacturora moved for judgment -sotydth-
standing verdict er for new trials, or remitting of
damages, following jury verdicts in clatmants* fae
vor. The District Court, Butler, 1, held fury (1)
damages verdict were grossly excessive, ad @
taint of awards was sufficient fo require new triel
on Hability as wall as damages,

NeW trial ordered. i
‘West Headnotes
{1} Federat Cll Peocedure 1704, ©2372608,3

ITGA. Federal Civil Procedure
T7BARVTI Adgment
TOAXVIE) Notwithstanding Verdict
TIDAK2608 Evidence
470AK2608,) KI General. Most
Cited Cases
Ponnerly 170Ak2608)
Asbestos mannficlurers were not entitled to judg-
meat notwithstanding verdict in their favor in sults
brought by workers claiming personel injury dus to
asbeutos contact; reasonable triers of fact cond dif.
fer as to whether claknants had suffered from as- :
bestos-related lung disease, or were exposed to pat !
ticular defendant's product, and whether arly expos |
wo was a substantial contributing factor to Injury, !

|
{

[2] Damages 115 C=>127.3 :

145 Damages

© 2008 Thomson Renters/ West, No Claim to Org, US Gay, Works,

hittp://web2, westlaw.com/print/printstream.aspx?prit~HTMLB &destination=atpéssvSplit... 10¢7/2008“785 F.Supp, 1448
785 F.Supp. 1448, Prod,Liah Rep. (COR) P 13,285

MISVIEl Amount Awarded
TISVIA) in General
15k127.2 k, Excessive Demages in Gen
ORAL Most Citad C8808 roca mses
(Pormerly 1151128)
Damages are deemed to be excessive under
Alabama law if they shock judicial consciences or
arg 89 great as fo indicate bias, passion, or preju-
dica.

(3] Damages 115 €=9127,71@2)

115 Damages
ViSVIl Amount Awarded
LISVE(B) injuries to the Person
113k127.69 Expenses “Of and Loss of
Services Performed By, Injured Person
115Kk127.71 Medical Treatment and

Custodial Care: .

W1SKI27.71@) k, Future Expenses,
Mast Cited Cases

Formerly 1151135)

Tuy award of between $80,000 and $100,000 for
future wedieal expenses, for each of ten ckdmants
alloging that they were injwed through exposure to
asbestos, was clearly exosssive aud unsupported by
evidence; in only three ont af ten cases did
claimants arguably prove such ameuals.and for oth-
ers their own experts testified only as to cost of
9200 (o $500 a year for medical monitoring,

[4] Damages 115 €2127,7

115 Damages

LSVU Amount Awarded

TISVI(B) Injuries fo the Person
W15kt27.7 kin Goneral. Mast Cited Cases

Wormerly 1156130,1, 115k130(1)}
Under Alabama love damages for pain and suffering,
genorally should be left to sound, discretion of jury;
however disaretion may be corrested for cleat ab-
use and passionate exersise,

15} Damages 115 =>14),7

~Dipirons-—~

Page 3 of 11
: Page Z

115 Damages
{SVE Amount Awarded
LISVIKE) Mental Suffering and Emotional

1151140.7 k Partioular Cases, Most Cited
Cases

@ormerly 115k132(1)}
Damages 14 C2127.)

115 Damages

TIS¥TE Amount Awarded

JLSVTI(B) tojuries to the Person
NiSKIZ7A1 k, Internal Injuries in Gener

al, Most Cited Cases

(Formerly 1 18k132(1))
Compensatory damage award of $500,000, cover-
ing paix and suffering, for anh worker claiming w
have suffered damage as a result of asbestos exPOL>
ure, war clearly oxovgsive; asbestosis om which
claimants allegedly suffered was not partloularly
painful disease, claimants had not established pain-
ful emotional distress arising ont of foar of dovelop-
ing cancer br future, and average compensatory
damage award in similar cases prior to present tris!

had bosn $169,100 with targést amount being
350,000,

fG] Federal Civil Procedure 170A. Car2315
TOA Federal Civil Procedure

TADAXYVI New Trial
VIOAXVICA) by General
T?OAKQ314 Portial New Trial of Rehear-
ing
17OAN2515 i, ‘Damages, Most Cited
Cases .

Improper consolidation of astestos exposure por
sonal lnjacy and wrongful death cases required new
trial on all iseuea, xather than remittitur or-wew trial
on damage issue alone; lability had beet strongly
contested fy each nse, compensatory damages
“wore greatly disproportionate. to injury in each of
the persona] injury cases and also unsupported by
evidence in many eases, and thore was evidence

“fury bad failed to follow cowrts instuations duc to

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785 F.Supp, 1448, Prod.Lisb.Rep, (CCH) P 13,285
vomploxities introduced through consolidation,

[7] Federal Courts 1708 C0313

bitp://eveb?,-westlaw.com/print/printstream. ssp ?prfteHTMLEéidestination~atpScsveSplit,, 10/7/2008

“VI08 Federet Courts

TOBY Courts of Appeals
T7OBVINCE) Scope, Standards, and Extent
LPOBVINICK)4 Discretion of Lower Court
TWOBKSI3 k. Allowance of Remedy
and Mutters of Procedure in General, Most Cited
Cazes
Trial court's degision to consolidate actions for trial
will be overtarned only if it amounts to abuse of
disoretion, .

_ 18] Bederal Civil Procedure 170A €208,1

VGA Federal Civil Procedare
VGAL In General
VIGAI(A) In General
FFOAK8 Consolidation of Actions
TIOAK8.2 k. In Generel Most Cited
Cases

(Formerly 170A)8)

Consolidation of ten personal injury lawenits and
three. wrongfal death lawsuits, involving sxposure
to asbestos by workers, was prejudicial to rights of
asbestos manufacturers even though special meas-
uros vere taken such as firmishing of notebooks to
Jurors, cautionary instructions, and spacial inferrog-
utory forins; similarities of awards made to various
complainants, despite considerable differences in
proof, and overall “exorbitant” awards in view of
proof offered, indicated that jury had not carried
out judge's instruotions. .

*145¢ Russell W. Budd, Lise Blue, Dalles, Tex,
8G, Middisbrgoks, Mobile, Als., for plaintiff.
Michasl B, Kinnard, Knoxvilla, Tem, J. Rando'ph
Bibb, Jn, Nashville, Tonn., for defendant,

MEMORANDUM OPINION AND ORDER
BUTLER, Distriot Judge,

These consolidated actions are before the Court on
@ motion for judgmont notwithstnidiiy die-verdict

Page 4.0f 11

Page 3

of, in the alternative, for new triels or for remittit:
urs of damages filed by the defendants, Owens-
Itinois, Ine. nid Keene Corporation, These thirteen

Separate actions .were,.consolideted. for.trial-overdem—.-.

fendaats' objections. Following a fifteen day trial,
the jury.ceinrned verdiots tn. faver of euch plaintiff,
After carefil review of tho record, the verdicts, the
argument of counsel and the applicable law, the
Court finds that the motion far jmo.y. is due to be

denied but that the defendants are entitled to a new
trial in, each case:

PROCEDURAL BACKGROUND

These actions consist of ten personal igury and
three wrongful death actions arfsing from the ex-
posure of each plalntlf, or plaintiff's dacodent, to
asbestos In the workplace, In the majorly of cases,
exposure allegedly ocurred af Alabama Dry Dovic
and Shipbuilding (ADDSCO). In cach case, the
plaintiff alleged threo theories of recovery: negii-
gence, wantonnuss and violation of the Alabama
Extended Manufacturers Liability Doctrine, Two of
te wrongfut death actions and seven of the person
al injury actions also contain clafras for loss of con-
sorthnn filed by the wife und widow of the worker,
Although the dofendarty varied in cach case, suby
stantially the samo defindants wore named in exch
case, Ths issue of knowledge or stato of the-art was
common to cach case, as were the defendants! af
firmative defenses, Because the actlons involved
common, questions of law and fact and in the Inv
‘terest of judicial] economy, the Court aonsoldeted
the ustions for trial porsvant to the authority of
Rule 42 of the Pederel Rujes of Civil Procedure.

Folfowing a fifteen day trial, the jury deliberated
about six hours and returned verdicts in favor of afl
plaintiffs. In eank of the sight non-caneer personal
Injury cases, the jury awarded oampensatory dam-
ages of $80,000 for future medical expenses and
$500,000 for pain and suffering and punitive dam
agés of $1,500,000 per defendant. In each of the
{WO osneer personal injury cases, the jury awarded
Sompensatery damages of $100,600 for future med

© 2008 Thomson Reuters/West, Wo Claim to Orig, US Goy, Works,

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ijeal ‘expenses ‘and $750,000 tor patn and .sntierkig
and punitive damages, of 31,500,000 per defendant,
dn each of the wronglul death vases, the fury-awar
--Gded..83,000,000...in.punttive. damages. onbytHh Bop -mun-dTta bhi personal injury-ueiloa-pleiitife presented —-o-— meneame

each loss of consertiun claim: the jury” awarded
$50,000.

FNL. Only panitlye damages are recover
able. under Alabama's “wrongfid death state
ute, Ala.Gode. §-tr5410 (1975). Lowe »,
General Matas Cora, 624 F.2d 1373 (5th
Chr, 1980}; Deaton-v, Burroughs, 456-80,24
TH (Ala. 1984),

LEGAL ANALYSIS
£, MOTION FOR 3.N.OY.

{1] The evidenes yresenied at’trial does not, support
& judgment notwithstanding 145% ‘the verdict in
any of these actions, The “Bleyenth Clrouit: has
stated thy. siandard to. which a tial court must ad-
here when considering a motion for judgment not-
withslanding the vordiots.

Adi of. the evidence presented. af ‘trial must be con
sidered “iy the light-and with all reasonable infer
oneas zost. favorable to the party opposing the mo-
tion,” -A ‘motion for Judgment no. should bs
granted only where “reasonable [peapley could not
ative at a contrary verdict 3.” Where substantial
conflicting evidence Is presented such, that -roason-
able people “in the exerciga of ‘impartial judgment.
might reach different.conclusion, [sie?’-the- mation
should be denied. *

Sion». Sheaeson Lehiaan Bros, 895. P2¢ 1304,
1319 (C1Uth .Cir,1929) (quoting Casile-y. Sangamo
Weston, 827 Ed 1550, 1358 (1th Cir,1988)),

Despite defendants’ esseriions to ‘the vontrary,
plaintiffs in oavh’ case “have : presented sufficlent
evidences from which ‘a reasonable Juror could find
the defendants Hable, it ls unecessary to-igexam-
{ne all the testimony-here, Suvfies ft to say thatthe
Court has-reviewed the record and fendants
heVe failed t6 Joo! at the Con

Pape.5 of 11.

tatst, that is,.in the Heht most favorable to thenon~
moviig party. Instead, defendants have cited only

- fhed.tontinnony favorable to thom in most-instances,

evidence that-he, saffored trom an asbestos-related
lung ‘disease, that he was exposed to defendants' as
bestos-oontaining products, that gach and every ex-
posure Wasa ‘substantial contributing factor to his
injuries and that he sufitved damages as a result, In
savh-wrongfil death otse plaintiff prosented proof
that het. decedent was-expased to-defindants’ asbes~
tos-oontaining products and that such expostre. yas
a.substantlal contribating cause of ‘his: death. In
short, the evidenes la such thet reasonable persons
might have reached differing conclusions 2%

‘FN2, However, for. the seasons discussed
in Section H, even though plalitifts did
“present some evidence of Hability lo” each
coase, “the. Court cannot day thatthe Jury's
decision fo. find In favor of the -plainttfts
was not ‘hinted by the, passion gud prejue
dice that resulted from. the, consolidation of
these actions:

JL. MOTION FOR NEW TRIALS.

‘The Court finds that the defendants are entitled to
new irlals for twe.reezons, First, new trials are, year
varted.in Bach of the ‘personal injury zotlons bey
‘omuge the. compensatory damages mwarded In cach
‘vase wert-so-excansiva as to indio#e. passion tid
prejudice on the part of the Jury. Second, the con~
solidation. of such @ largemanber of .actlone ine
volving both personal injury and wrongful death
restited it prejudiola). error. Although “these are

sepaate grounds for granting the-motion jor new

‘tial, the two ars interrelated,

A, Bxcossive Damages

J2) ‘There, are two issues-te Court must conftont in
deciding a:motion for new tial based on. oxceasive
damages, (1). whether the-amount’ ofthe awurd is
saxcessive and (2) the-proper romedy te be applied,

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7SP Supp. a8
785 F.Stipp, 1448, Prod. Liab Rep, (OCH) P 13,285

Stats substantive Taw governs ‘tho, first issue while ©
federal provednesl fay: governs the. sesond, Estate
of davkson.y. Phillips Petroleum Co, 676 F.Supp.

Damages are. déemed tu be. excessive ender
Alebanalaw “if -they. shook the judicte!l cousoience
er are so great as to hdicate-bigs, prsston, or-pirelie
dice,” Sumhern Lye. &, Health ing. Ca, v Smitty,
518 Bold 77, 82 (Aia1987), ‘The compensatory
damages -avardes! onch.plaintiff in this estion not
only -shook-the judicial oanscienve -but also por
sundg ‘the Court thet the jury verdicts were ‘preju-
Govd by. the joluder of all these ations, The. com-
pensatory’ damage awards were. divided into two
parts; future hospitalization and pain and suffering,

{3} The awatd of fxtwe medical exponses is olearly

exeossive and nnsupporied by: the pyidence in the-

taajority of personal injury cases, The jury awarded
880,000 to $100,000. in each persopal injry case
for tufure-medioal expenses, However, in ‘only three
of ten cases. did -plaintiifa prove -sugh . emonnts,
Plaintiffs offered proof of fatwe"t452 medical ox-
penses. fhtcugh their medical vaperts, that. each
Plainti?f-qwould’ require annual medical monitoring
for the remainder of-his life asa result of his ashes.
tos-roleted disease or injury at. a gos, of 8200. tp
$500 “par yest. Thus, the maximum recovery per

plaintiff tor medical :moutioring should range front

$4,050 to ‘$10,200 depending. upon platntiif's age
and life expectuncy. For seven of the ten
plaintiffs these aro.the only. future medical expenses
proven,

FN3, ‘These amounts represent the mpi
um. nredical moaltoring- costs (8300) anal}
plicd by the life expectancies of the oldest
and. ‘yourdgest plaintiffy, respoativaly | (8.1
‘years ancl 20.4 years),

Tn adgition to, thess medical amenitoring -expenses,
three plaintiffs, James. "Weaver, Jesse Benjamin. and,
Jougph’. Brammer, offered. testiinduy that they were
likely to incyr hospitalization sosty in the future,
‘Their medical experts testifledt jet ‘becuse ‘their

Page.6 of 11

sebentns-related -diseage ‘had shown signa of pros
grasslon, these thrye plaintiffs ‘wero likely 40 sutior
from complications such ag lung infections whieh

-would -raquire.-fhoapltaltzation Ma SH gave’ ex ppFf mem nennenninsiatsnnne

estimated thetotel cost-of future hospitalizations ag
e result of these complications to be. $50,000 to
$70,000. .Dr. Gaston Lorino, who testified on behalf,
of Mr. Braner and Mr, Benjamin, estiinated tie fu-
hikt hospitalization costs for those plaiatifix.to ba
$BG,000 to. $100,900, Therefore, - the ‘awards of
$80,000 to Me, .Bruner and: §100,000.to. Mr, Ben-
joni were supported by the evidence. ‘However,
the $80,000 aviarded to Mir, Weaver still exceeds
‘his proof:of fiiure spedical expenses (870,000 fox

fone hospitalization oxpenses and $4,150 for med-
foal monitoring, **),

PNG, This amount was calculated by aul
tiplying “the mextmum medtea) monitoring

costs ($500) -times the plaintiff's Vif ex
pootauigy (8.3 years),

‘There wasno testhniony on behalf of any of the-oth-
‘er ‘seven. personal ‘Injury “plaintif that thoy wero.
‘Tkely-to be hospitalized In the fiture-ns @ result. of
their asbestos-related ‘disease. or. Injany, ‘The dane

_, ages awarded these plaintiffs exeogds the proof-of
" future-medical expenses: by a oninimun .of almost

“$70,000, ‘Fheretere, the Court finds. the damnages
awarded’far fttue medical expenses in the remain.
ing. seven cases werd grossly excessive,

a Likewise, the damages uwarded for pala aad
suffering in_eneh of the personal injury actions was,
erosive, “The Court is mindiul that demages ‘for
pale end suffering generally: should be “eft to :the.
soued discretion of-the jury” Dette vy. Sims, 279
Als, 516, 517, 187 Sod 548, $32 (1966). The
jury's disoretlen Ja not unlimited, however, and may
‘be gorrested by ‘ihe -coust ““for-clear abyss. or yas
siouate- exercise.” Ya Although rare, there are ke
stances where. Alabama coarts have found damages
awarded for pain and, affering to be excassive. .
Eig, Consolidated Freizitways %, Pasheco-Riverd,
524 Bo.2d 346 (Ale1 988); CacaCola Bottling Co.
», Pawker, 45] Sadd 786 (Ala.1984).

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i785 F.Supp. 1465
785 F.Supp, 1448, Prod.Liab.Rep. (CCH) P 13,285

OF course, there is ne precise formula for determin«
ing when an nwerd for prin and suffering is excess
ive. In malting this determination, the Court takes

~into..considerstion.the. testinonsmost-davorable-tg——nom—

the plabitifis as to the nature and extent of the dam-
ages" inflicted and general inowledge of verdicts
awarded in this district for comparable injuries as
well ay the court's own Imowlodge and experience,
Paohteoo-Rivera, 524 80.24 at 352.

{S]_ Hach plaintitie’ testimony regarding pain and.
anffering wes remarkebly similar ood can be div
vided into three malar categories: curtailment of
aotivities due to shortness of breath, menial anguish
for fear of caucer and, in a few cases, past or fiture
pain aiid suffering duo to asbestos-related illnesses,
Withent exception, the primery complaint. of each
plaintiff was that he could no longer do the kind of
thisgs around the house or yerd (or enguge in recre-
ational activities) as he used to bacause of hls shori-
ness of breath, Some complained that dieir sex lives.
were affeoted, AN bat two of the plaintiiis are over
the age of staty, suggesting that the aging provess
itself would result in some curtailment of these
activities, Several plaints suffer trom other M-
nesses which also contribite"2453 to the Winite
tions on thei activities. For example, Tulsle
‘Weaver is legally blind and suffers trom diabetes,
John Wilson is partially paralyzed and cannot speak
as the result of a car aucident, Joxeph Bruner suffers
from chronie obstructive pulmonary disease, a
smoking-related ines, heart problems and black~
outs, ail of which are nurelated to asbestos expos=
te, Most of the plaintiffs had sermal pulmonary
fimetion, and none of the plaintiffs wae detennined
by auy medical testimony to have suffered any de-
gree of permanent disability due ty shortness of
breath,

‘The fear of cancer is, ih the Courts opinion, the
most significant element of suffering in each of
these casas. Such fear, however, must be reayonable
and genuine and will, of course, vary with the indi-
vidual. In other words, damages may be awarded
only if a plaintiff does have a fear of canoer that

Bage 7 of LI

cabees mentd sngeish, not simply because plaintiff
could bave a fear of canoer. In addition, Ht is only
the mental anguish thet ix compensable, aot the
probability-oi-contracting “cancer A~faw-plaintifisg
such ae Mr, Broner and Mr, Wilton, prevented testi
wnony that they suffered from periodis episodes of
Supression due to their fear of contracting omoer.
Although their depression resulting don the fear of
cancer seenied worse than that af ofher plaintitis,
neither Mx, Bruner nor Mr. Wilson required psychi-
airls care, nor were they prevented ‘from . carrying
os thelr daily activities, Most of the other plaintiff
simply testified’ that they worried aboot the future
and the possibility of getting. caucer, without giving
any specific examples of how that fear has affected
thom, At leant one plaintiff, Jesse Benjamin, did not
testify at all concerning fear of cancer,

Physical pabr and suffering sounet be considered an
element of datnage for most of these plaititifis be-
cause thers was no evidence offered that there is
sny pain associated directly vith nsbestosis, Jesse
Benjamin and Thomas Brown presented evidence’
of past physical pata and suffering because of thoy
had bath suffered from canoer in the past, however,
Dui had fully recovered fiom cancer operations,
‘The jury apparently recogntecd this injury and
swerded them un additonal $250,000 in pain and
suffering damoges. In addition, plaintitis: Boniamiy,
James Weaver and Josoph Bruner presented teati-
mony that their asbestos-related diseases had shown
signs of progression which indicates the future Whe

Tihood of painful complications, such as tung infec
‘Hons,

Byen those itffs who prosonted the most com-
polling testimony regerding pain and suffering
would be adequately compensated with an award
substuntially tess then the amount awarded by the
Jury, For exemple, Mr, Bruner presented substantlal
testitnony ox to al! clements of pain and. suffering,
Unlike most plaintlits who were retired, Itt. Broner
tostified that he bad been laid off work, bat had not
boon called back because of his health probleme,
most of which sre related to chronie obstructive

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Page &“785 P.Snpp. 1448
785 F.Supp, £448, ProeLieb Rep. (CH) P 15,285

pulmonary disease caused by smoking, At sixty-
one, Bruner was one of the youngest plaintiffs. He
gave compelling testimony regarding his fear, of

canoer, .cepoctally.£n-light of -the-fact-that-he-tad

children living at home. He presented medical evid-
ence that hix disease was Ukely to progress and that
ho was Ukely to suffer from Inag infections 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-compensatory damages for these injuries is exor
bitant, Although the injury is permanent, ft & not
permanently painful. Mr, Braner may experence
pain associated with lug infections, bat the evid-
ence clearly established that those infections are
treatable and the pain will subside as the infection
is cured, ‘Thus there is no chronic pain, Although
Mr. Bruner has been required to curtail activities as
@ result of shortness of breath, he {s aff able to
function and. to camry on his daily sotivitios.
Moreover, he was able, as were all other plalntifis,
to sit through the ontire Sfteen day wlal, adhering to
the Court's sometimes avduony trial schedule, Fear
of cancer is extremely difficuit to value; however, it
is just that, 5 fear. *1454 While plaintife’ angutsh-
and fear is understandable and compensable, it does
act appear overwhelming or debilitating,

The exgessivenoss of these compensatory damage
awards becomes oven inore apoerent when com:
pared with jury awards ix other asbestos personal
Injury cases tried in this district, The average com
ponsatory damage award prior to fils tial was
$169,100. ‘The largest amoumt of compersat

ory damages ever awarded prior to this trial was
$350,000,Fa@

FNS. It should be noted that thia figure in-
cludes awerde in Aidgens v National
Gypsum Co, No. 89-0772, in which nine
personal injury actions were consolidated
and tried before the Hon. Alex T. Howard,
Chicf Aidge, immediately prior to the trial
of these actions. Motions for new trials or

Page 8 of 17

Page 7

remnittiiurs are ponding in those aoflons, If
those actions are excluded, the sverige bs
$86,291,

FING. This award occured in Coleman »,
National Gyprum Co. ono of ning consol-
idated cases described in footnote 5,

[6] When confronted with: an excessive damage
award the Court has several options, .

Tf the passion, prejudice, caprice, undue. sympathy,
arbitrarinens, or tare talnts only the damage ewerd
and not the Habllity assessment, the proper response
in @ xenittivur or a now trial. addressed to damaged
alone. But, if it appews that the improper jury ao
tion, in reasonable probability, uffzoted both the He
ability and damages issues, thew a new frlal as to
Goth issues otust be ordered,

Edwards v. Secrs, Roebuck & Co, 312 F.2d 276,
282 (Sth Civ,1975), Edwards offers some guidance
in determining whether the liability ag well as dam-
ages issues were telnted. in thet case the appellate
court found that a complete now trial was required
because: (7) the Habilliy issue was closely con-
tested, (2) connsél made intproper-ergumenty to the
fury, @) the trial court found the award of damages
to be grossly uxeessive, and (4) the jury wes
swayed by passion and prejudice and fuilad to te-
spond ts the tal.court's instructions, fa, at 283,

Because most of the same fustors are present in this
case, the Court finds that s new trial is necousary as
fo all issues. First, liability was strongly contested
in each, cage, including the wrongfil death saves,
Defendants riot only contested the medioal causa.
fion of each plabtiff's injuries but also contested an
issue common to all plaingffs, stato of the art or
‘toreseeubility. Second, as discussed above, the
compensatory damages in most cases were not only
greatly disproportionate to the infuy in each of the
personal injury cases but also unsupported by the
evidence in many cases)" Finally, and as dis-
cussed below, Jt appears that the consolidation of
iofons was prejudicial and that the jury failed

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785 B.Supp. 1448, Prod.Lieb.Rop. (CCH) P 13,288

to follow the Court's instructions fo consider each
case separately,

analyze the ponitive damages under the
framework sat forh in Grees O# y,
Hornsty, 539 802d 218 (Al.1989) end
Hammond vy Chiy of Gadsdan, af al, 493
So.2d 1374 (Ale1986} at tala time, The
amount of compensatory damages alone ip
ao excessive that when considered in light
of the factors. enmmerated in Bdwards,
leads the Court t conclade that the Habil-
ity determinations, wot just the damage
aerards were tainted, and must be set aside,
Of course, if the Hability determinations
fail so imist thé punitive damage awards,
Likewise, it is unnecessary to separately
andlyze tie Josa of conaortium claims sines
such claima are based- pn derivative liabil-
ity, See Mattison v. Kirk, 497 So2d 120
(Aln.1986).

B. Consobdation

[7] The prajudicial effect of the consolidation of
thene actions is not only indicative that the Habiiity
determinations were tainted but is also in itvelf a
ground for granting the motlon for new tial, See
Arnold v. Eastern Ale Lines, Ina, 112 20 899. (ath
Cin}, cert denied 4s0 U.S. TLO2, 103 S.Ct 180,
76 L.Ed2d 366 (1983) and 46¢ U.S, 1040, 104
B.Ct, 708, 79 LEd2d 168 (1984) (New trial gren-
ted due to prejudicial effect of consolidation of ao-
tions agelast alclines and their bisurers), A. trial
courts decision to cansolidate actions for trial will
‘be overtumed only if it amounts fo abuse of discre-
tion, Heaarix y Rapbestos-Monhatian, TI6 Fad
1492 (11th Cir,.1985), The combination. of factors
present in this instance lead the Court to the over
whelining *1455 conclusion that the consolidation
of theye agtions was unduly prejudicial.

[8] This Court revognizes that conselidetion of as»
estes cases for trial is common. See, agi, Johnson
v, Cefotes Conp,, 899 Fad 1281 (2d Cir, 7990)

acre ENF 7Rie--Court-—finda-lt-annecessary—to-—~-——-bastos-aeilons-for-trial-where-tho-plakitifie-had-sime—-

Page 9 of LE

Poge 8

(upholding the oongelidation of 4wo mabestos ag
Hons} (and cases cited therein). In Hendpix, the Bl
eventh Cisoult upheld the consolidation of four as

ilar exposure and. work histories and eacit suffered
from asbestosis, In. a decislon to consolidate the
court musivonsider:

[Whether the. spucific risks of profudics and pos-
sible contusion fare] overborne by the risk of in
consistent adjudication of common factual-and fag
al issues, the burden on parties, witnesses and avails
able Judicial resources posed by multiple lawsuits,
the length of time required to conclude multipfe
suits ay against @ single one, and. the relative ox.
pense to all conoemed of the single-trial, multiple-tri-
al alternatives,

Hendrix, 716 F.2d af 1495 (quating Arnold vy Eavie
era Air Lines, Inc, 681 F.2d 186, 193 (6th
Cir.1982). Tho ital court “snuat algo bear in maid
the extent to which the ricks of prejudice and con-
fusion |. can be alleviated by ulilizing cautionary
insiruotions to the jury during the trial and con-
trolling the menatr in which the plaintifis claims ..,
are submiited to the jury for deliberation.” Jd,

Xt is evident (unforumately, in hindsight) that des-
pite. all the preeauilonery measures taken by the
Court (2. juror notebooks, cautionary instructions
before, during and after the presentation of evid-
ence, special interrogatory forms) the joint tiat of
such oa large number of differing cases both con-
fosed and prejudiced the jury. This contusion aud
prejadics Is manifest in the identical damages awar-
ded in the non-cencer porsonal injury eases and in
‘the cancer personal injury cases, the relatively short
deliberation time us well as in the inflated amounts
of muy of the damage awards and the Jack of evid-
anes supporting some of the damages in several
cages,

it appeuts that the jury simply Immped the personal
injury plaintiffs into two categories gnd gave
plaintifiy ia each category the same umount of com-
ponsafory damages no meiter what thelr injuries.

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785 F.Supp. 1448

Page 9

785 F.Supp, 144%, Prod Liab,Rep, (CCH) P 13,285 .
Two of the personal injury plaintifi, Thomas compensatory damages of $6,500, S1d1,353,
Brown and Jesse Benjamin, had in the past suffered $128,558 and-$6,500, In MeDuffie, vt al v, Colotex,
from cancer arid were diagnosed as sufferiig fom No, 87-541, the jury found in favor of the dofand-
—~asbestosisy~ “Hack ~of-~those-~ plaintifis-recelved—~~---~- ants hr-eaclr ofthe four-casesr in-villen- vs Celoter;”
$100,000 for future medicnl expenses and $750,000 No, 87-1039, in which three personal injury actions
for pain arid suffering, were consolidated for tial jury awarded. $59,000_in
. compeitsatory damages and $50,000 fh punitive
The remaining personal injury plaintiffs ench demages to one plaintiff-but found fh favor of the
presented testiniony that they suffered from asbes- defendanis inthe other two cases, In Cook y
tos-rolated Img discasa of varying severity, Each Celotes, No, 87-807, the Jy awarded compensat-

was awarded $80,000 for future medion! expenses ory damages of £90,000, $130,000, $125,000 and
and $500,000 for pain and suffefing, It fs incon $125,000, reapectively, in the four cases oongolid-
ceivable to the Court thet a properly functioning ated. toy trial, Finally, in Auceeny »% National

jury could have awerded the sume amount in each Gypsum Co, No, $9-0772, Judge Howard consolid-
case, Compare, for example,plaintifiy’ ovldencs as ated nine personal injury actions for trial. ‘The jury
to Georgs Brown with Joseph Broner, whove injur awarded the folowing compensatory damages in
ies are discussed above, Viewdug vie evidence iy cach case; $278,000, $325,000, $250,000 (2 oxses),
the Hight most favorable to the plaintiff, Brown was $225,000 (4 cases}, and $350,000. Tp is also
diagnosed with mild asbestosis, xways vevedled worthy ta note that al! of these trials invelved only

mihi scarring conslstent with asbestosis, pulmonary
function tests show ne impairment in Brown's lung,
funotion, At age 59, George Brown at the time of
trial was still working forty hours a weele ns a

personal injury claims and, with the exception of
the Hudgens gcowp, no more than four cases have
been ted together. It appears, therefore, that when
fewer cases are consolidated for trial, the fuy fs

shipyard worker, an occupation which requires a ‘better able to consider the cases separately and yew
good deat of physical stamina, By iis own physi + turn verdioty based on the facts of each cage,

eian's testimony, his diseane is unlikely to progress

and his life expectancy has not bem dimin'shed by FNS, As noted above, a motion for new tf
fis disease, Hla major complaints aro that “when 1 al or yemittitur is pending in these actions,
get home from werk Im worn out” end he cannot

bunt and fish Jixe be need to and camet do things Further evidenes that the jory filled to consider
wound the house like Le used to, These complaints ouoh case on itz own merit is the relatively short
are hardly supristig-considering hie uge and work deliberation time in comparison with the length of.
schedule, Brown also testified that he worries about ‘trial and the volumes of evidence presonted, After a

the possibility of contracting cancer, fifteen day trial, the jury deliberated approximately

six hows, During this time the jury was required to
determine lability in each of thirteos cases, come
, Ponsatory damages as to ton plaintiffs, loss of con-

4, comparison of the awards in these cases with
awards in similar asbestos cases tried in this district
also supports the conclusion that the fury falled to

sortinm. ag to nihe plaintiffs, and punitive damages
consider cach oate separately, Prior to the trial of ab to each defindant,
the cused at band, five groups of asbestos cases had
been consolidated. and ted to verdict in this dis- it is not this Court's opinion thet asbestos actions
triof, Identical verdicls were the exception, rather can.never be consotiduted for trial, Rather, sotsol-
than the ele in *1456 thee rapes, For exumple, in idation simply did not work im this instunes, The
Foster, ef aly, Celotex, No, 87-0693 tn which four number of cases consolidated, the amount of avid-
cies were consolidated for trial, the jury awarded ence fo be considered, the differing injuries in~

volved and the unique aspects of Alabama's. wrong-

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

‘fal death statute al) contributed to make consolida-
tion of these cases anworkeble,

~Aftor-considering-the- combination- of-theve-factors~~
the Court is compelled to grant defendants! motion
for ney trials avto all actions, including the aetlone
for wrongfal death. Plaintiffs had argued that even
if a mew trial is granted as to the personal injury
plaintiffs, the wrongfnl death verdicts should stand,
Rolyiag on an argument iy defendants! brief,
plaintiffs contend ‘bat, if anything, the wrongial
death actions prejudiced the Jury's. devisious as to
the personal injury aotions. This is pure specula- tion,

When the prejudice results fram consolidation, the
Couit is not ftes to conclude that the eter affected
only sone cases and not others,

[{f-one cannot shy, with fair assurance, after pon
dering all that happened without stripping the ero~
neous sotion from the whole, thet the Judgment was
not substantiatly swayed. by the orror, it is im
possible to conclude that substontial rights were not
atfeeted.

ORear. v. Fryehauf Cop, 554 F.2d 1404, 1368
(Sth Ch.1977), Liability was strongly contested in
aii of the wrongful death cases as It was in the por
sonal injery cases, Beonuse wrongful dest dam-
ages are punitive in nature, the prejudice is not ap-
pareist from the face. of the verdicts themeelves,
However, given the nature of the error aud preju~
dice in this instance the Court cannot oonshide that
the Judgment in the wrongful death cases was not
awayed by the error,

CONCLUSION

‘The devision to grent new igdls has not been made
jightly, The Cowt has epent many months review-
ing the trial transcript, studying the applicable law
and weighing the options available. This Court,
when faced with the problem of nearly one hundred
ponding asbestos cases on its docket, and more
surely to come, mede a decision. The congestion

Ey ope~neny resHy Our oat-ab-onetime”— approaching

Page Li of 11

Page 0

‘these vases caused fn this district for all clvil ftig-
ants gives one a "1487 skewed view of holy te re
solve the probiem. The

great if they all, or most, settle; but when they
doa, and they didn't here, thirteen. shipyard work-
ers, their wives, or exsoutors if they have died, got
a chance to do something oot many. other civil Hig
ante van do-overwhelm a jury with evidence. Syid-
ence that would not have been adinissible in any
alngle -plaintifi's case -hed these oases been tried
separately, As the evidence unfolded fm this case, it
‘became more and more obvious to this Court that a
process had been unleashed that leit the jury the
fmpossibls task of betng able to oarefilly sort out
and distinguish the facts aad law of” thirteen
plalatifis’ cases that varied greatly in so meny crit.
ival aspects.

ih the final apalysis, the Court is convinosd thet the
defendants did not recelve a fair tral, Because the
jury verdict was not only excessive but also tainted
by prejudice, the Court 18 compelled to grant naw
jrials in eaol; cage, .

Acvordingly, tt is ORDERED that defendants’ mo-
lon for new irials bs and heroby is GRANTED. tt
is FURTHER ORDERED that defendants! motion
jor judgment novyithstanding the verdictia DENIED.

5.D.Al 1992.
Cain v. Armatrong World industries
785 F.Supp. 1448, Prod. Liab.Rep, (CCH) P 13,285

BND OF DOCUMENT

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bttp:/Aweb2, weatlaw.com/print/printstream.aspx?prit-HTMEa&kdestination=atpd&zev= Split... 10/7/2008‘Westlaw.
‘72 ¥.3d 1003
72. F.3d.1003, 33 Fo, R:Bery.34.79

United Statea Court of Appedls, Second Circuit,
Jol: CONSORT! & Frances Consorti, Plalittfis-
Appellses,

¥
ARMSTRONG WORLD INDUSTRIES, INC,
formerly Inown as Ammotrong Cork Coy Cont.
tion Engineering, Toc., et al, Defendants,
Owens-Coming Fiberglas Corp, Defendant-Appsl-
Jani,

int
“Nor BST pDoEkErD4-7501,

Argued Nov. 14, 1994,
Devided Aug, 28, 1995,
Amended Dee, 22, 1995.

Worker brought products Ilability action against
manufacturer ‘of asbestos ploe-covering products,
seeking damages for injuries suffered due fo expos
are to asbestos, and gaye was consolidated with oth.
er cosas. The United States Disiriet Court for the
Southem Dishict of New ‘York, Robert W. Sweet,
3, entered judgment for plaintlf&, and defeodant
appealed. The Court of Appeals, Loval, Cirenit
Judge, held that: (1) plaintiff's wife could not matn-
tain cause of action for loss of coasortion; (23 con-
eolidation of cases did not cause such confision or
prejudica as io warrant reversal, and (3) damage
award of $12 milion for pala and suffering to
plainttéf was material deviatlon from award deemed
reasonable under Naw York law.

Affirmed in part and yacated In part,
‘West Headnotes
[1] Federal Courts 1708 Cxe8ia

170B Federal Courts
TOBVIL Courte of Appeals
I7OBYUIGK) Soope, Standards, ind Extent

T7OBVILK)4 Discretion of Lower Court

Page.2 of 18

Page |

P V8BKEI2 kk, Aflowance of Remedy
~~ Consorth-ys damstrong World irtustriss Ingman Matters OF Preceding i” Garieral.” MUSE CIBgE
CAR (IN N1995. Cases

‘When iesue for appellate, court is whether trial
court's decision fo. consolidate, exceeded {ts disere«
tion, question remains whether convalidation.
caused such confusiog or prejudice aa to render jury
ineapable of finding facts on. basis of evidence.

[2] Federal Civil Provedure 270A O=08,1

170A Federal Civil Procedure.

TOA In General
LVAI(A) in General ”
TOAK8 Consolidation of Actions
VOALEE kK. In General. Most Cited

Caves
Federal Civil Procedure 170A C=21953,

TIGA Federal Civil Procedure
TIOAXY ‘rial
TOAXV(A) ln General
T70AK1953 k, Separate or Consolidated.
‘Trials of Different Actions, Most Cited Cases

Consolidation. of products fiabllity actions that

arose from. exposure to asbestos products did not
prevent jury dom rendering verdicis based on eyid-
ence as related to each independent claim and so
sonsolidetion was proper; jury was provided with
spoclelized notebooks with photograph of each
plaintiff, avcempaniod by undisputed biographical
information, jurors vere encouraged tw tule extens-
ive nofes during trial, counsel used charts to belp
fury distinguish among. plaintifit’ exposure histor
jes, judge gave mumerovs cautionary and limiting
instructions, and verdict forme guided jury step by
step through vyarions issues it needed ta consider
and resolve.

{P] Federal Couris 1708 C=415

1708 Federat Courts
TTORY | Stale Laws as Roles of Decision
H70BYT(C) Application to Particular Matters

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‘72, F.3d 1003
72 ¥.3d 1003, 33 Fed. R.Serv,3d 79

L7OBK415 k. Damages, Interest, Costs and
Foss, Most Cited Cases

Deterniining whether damage award for pain and

~suffering-is oxcensive-ty.iasye-of-substantive-rights,-~-

and so is governed by state law,
{4} Bederal Courts 1708 €-—372

170B Federal Courts
[7OBVUL Courts of Appeals
TRORVINGE) Scope, Standards, and Bxtent
TIORVINGK)S Quostiona of Fact, Verdicts

and Findings
VHOBK870 Particular Issues and Ques
‘thons

V7OBK872 1k. Inadequate and Ex~
cossive Damages, Most Chad Cases
Under New York law, jury vardict may not excead
fhat amount which would deviete materially from
reasonable compensation, which requires reviewing
court to determine range it regards as reasonable,
end to determing whether partioular jury award de~
viatos materially fom that range, taking corrective
action as it dows; “material deviation Gam reason-
abieness fs less than that deviation requived fo find
award so exowasive os to shock conscience,
TY MeKcinney's. CPLR S501 (0),

{5] Federal Courts 1708 Cay752.

1708 Federal Cowis
TOBVITT Courts of Appeals
TOBVILGK) Scope, Stardards, and Extent
VTOBVITI(K)? tn General

T70BK752 k. Matters ot Evidence Con-
sidered. Most Cited Cases
‘Under New York law, om review of whether dam-
ago award was excessive, Court of Appeals will
Took to other jury awards condoned by courts of
‘New York, revognizing that New York appellate
courts regard prior awarde as not binding bet in-
atructive,

|] Damages 115 127.11

115 Damages

aatthoe t- SCA Gag enn

Page 3 of 18

Page 2

JISVTL Argount Awarded:
LSYIKB) Injuries to the Person
TISKIZ7.1 4% Internal Injuries in Gener.

Formerly TSr1320))

Damages of $12 millon awarded te ‘plaintiff in
Products Iiabitity ection that arose from exposure to
asbestos devieted materially from what ts deemed
reasonable under New York law, and so warranted
new irial on issue of darnages for pain and suffer.
ing, unless plaintiffs accepted remittitur of award to
82,5 million; although plaintiff endured enormous
suffering, pattern of prior similar cases reveatad
that range of damage swards from approximately
$1 miltion to maximurn of $3 mifiiot was deemed
reasoitable under New York law,

F7] Federal Civil Procedure (704 221973

110A Federal Civil Procedure
\7OAXV Triak
L70AXV(A} In Gsnoral
+  TP)AKI970 Counsel's Conduct and Arg
ments
THAKLIOTS kk. Btatements as to Facts,
Comments and Arguments, Mast Cited Cases
Counsel's specifying targer amounts for jury te
award in damages is disfavored; such euggestions
anchor jurors’ expectations af fair award at plave
sat by counsel, rether ian by evidence,

{8] Federal Civit Procedure 170A C1969

VI0A Federal Civil Procedure
TIOAKV Trial .
TTOAXV(A) In General
TIOAKIZE k, Jndge’s Remarks nad Con.

duct, Most Cited Cazos
Judge's compliment of jury after jury returned Its
‘first verdict did not warrant mistrial on basis that
Mis encouragement of jury was misunderstodd as
endorsement of enerssity of ity verdict, since
judge gave curative instruction after counsel objec-
ted,

{9} Federal Chit Procedure 170A €292537

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|
5
§72 B38 1003
72 F.3d 1003, 35 Fed R.Sorv.3d 79

170A. Federal Civil Procedure
YOAXYT New Trial
TIGAXYIGB) Grounds

Miscondnot of or Affecting. Most Cited Cases
Juror’s mentioning during jury deliberations tint

‘ one non-parly defendant possessed $1 billion find
fo pay nitomey fees to fight asbestos lidgatton’
cases did sot warrant new trial, in Bight of tril
eoutt's finding that any well-informed cltken vould
possesé general tuowledge about that defndant,
and fact that report from juror was not prejudicial
to defendants,

[10] Evidence 187 Coo18t

157 Evidence

157¥ Best and Secondary Evidence .

1STKL8O Preliminaries to Admission of Sec-
ondary Evidence
AS7K181 kc In General, Most Citad Cases

Asbestos manufacturer failed to introduce compu
terized Hst, or make if available to court, or obun-
sel, that wes used for summary evidence that com-
panies hed purchrsed few asbeston-vontaining
products tom asbestos manufacturer, end so sume
mary evidence was not admissible in produsts Hab-
fity action. against manufacturer that was based on
harm fromexposnre to asbestos,

¥1004 Steve I, Phillips, New York City (Moshe
Maimon, Robert 1, Komitor, Alani Golansid, Levy
Phillips & Konigsherg, New ‘Yorls City, of wounsel),
for Platotifis-Appotices.

Wiliam. G, Ballas, Mew York City (M