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. e du/thir dc ir c uit_1999/108Filed April 26, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 97-1820 and 97-1821

CHARLES GREENLEAF, JR., ALTERNATE EXECUTOR OF THE ESTATE OF CHARLES GREENLEAF, SR., DECEASED; NAOMI GREENLEAF, IN HER OWN RIGHT

v.

GARLOCK, INC.; FIBREBOARD CORPORATION; CELOTEX CORPORATION; OWENS CORNING FIBERGLAS CORP.; OWENS-ILLINOIS GLASS CO.; EAGLE-PICHER INDUSTRIES, INC.; JOHN CRANE-HOUDAILLE, INC.; A.W. CHESTERTON; SEPCO CORP.; UNIROYAL, INC.;

OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO. Third-Party Plaintiffs

v.

HOPEMAN BROTHERS, INC.; COMBUSTION ENGINEERING, INC.; ANCHOR PACKING CO., INC.; ARMSTRONG WORLD INDUSTRIES, INC.; GREEN TWEED & CO., INC.; MELRATH GASKET COMPANY, INC.;
MELRATH BASKET HOLDING CO., INC.; PARS MANUFACTURING CO., Third-Party Defendants

Owens Corning, Appellant,

No. 97-1820

CHARLES GREENLEAF, JR., ALTERNATE EXECUTOR OF THE ESTATE OF CHARLES GREENLEAF, SR.,
DECEASED; NAOMI GREENLEAF, IN HER OWN RIGHT

v.GARLOCK, INC.; FIBREBOARD CORPORATION; CELOTEX

CORPORATION; OWENS CORNING FIBERGLAS CORP.; OWENS-ILLINOIS GLASS CO.; EAGLE-PICHER
INDUSTRIES, INC.; JOHN CRANE-HOUDAILLE, INC.; A.W. CHESTERTON; SEPCO CORP.; UNIROYAL, INC.;

OWENS CORNING FIBERGLAS CORP.;

OWENS-ILLINOIS GLASS CO. Third-Party Plaintiffs

v.

HOPEMAN BROTHERS, INC.; COMBUSTION ENGINEERING, INC.; ANCHOR PACKING CO., INC.; ARMSTRONG WORLD INDUSTRIES, INC.; GREEN TWEED & CO., INC.; MELRATH GASKET COMPANY, INC.; MELRATH BASKET HOLDING CO., INC.; PARS MANUFACTURING CO., Third-Party Defendants

Garlock, Inc., Appellant,

No. 97-1821

On Appeal From the United States District Court For the Eastern District of Pennsylvania (D.C. Civil Action No. 90-cv-01557) District Judge: Honorable Marvin Katz

Argued September 15, 1998

BEFORE: STAPLETON and ROTH, Circuit Judges, and LONGOBARDI,* District Judge

(Opinion Filed: April 26, 1999)

___________________________________________________ ______________

* Honorable Joseph J. Longobardi, Senior United Sta tes District Judge for the District of Delaware, sitting by designatio n.

2Catherine N. Jasons

Robert N. Spinelli W. Matthew Reber (Argued) Kelley, Jasons, McGuire & Spinelli 1617 John F. Kennedy Boulevard

Suite 1400 Philadelphia, PA 19103 Attorneys for Owens Corning Appellant in No. 97-1820

Fredric L. Goldfein (Argued) David C. Weinberg Deborah M. Knight Goldfein & Joseph 111 South 15th St., 17th Fl. Philadelphia, PA 19102 Attorneys for Garlock, Inc. Appellant in No. 97-1821

Martin Greitzer (Argued) Lee B. Balefsky

John M. Mason

Greitzer & Locks 1500 Walnut Street, 20th Floor Philadelphia, PA 19102 Attorneys for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Garlock, Inc. ("Garlock") and Owens Corning Fibergl as Corp. ("Owens") appeal the District Court's orders denying their motions to alter or amend a judgment holding them liable for Charles Greenleaf, Jr.'s injuries in thi s strict liability asbestos products action. We address six of the issues tendered for resolution. Appellants argue th at: (1) Pennsylvania's "one satisfaction" rule precludes Gr eenleaf's entire federal action; (2) issue preclusion prevent s relitigation of damages in federal court; (3) the D istrict Court's jury instructions inadequately informed the jurors

3regarding Pennsylvania law; (4) inflammatory statem ents by

plaintiffs' counsel prejudiced the jury; (5) there was insufficient evidence to support the jury's finding of liability on the part of Garlock; and (6) the jury's verdict absolving the non-appearing defendants of liability was again st the clear weight of the evidence.1

We agree with the appellants that issue preclusion prevented relitigation of damages in this action an d that a new trial is required to consider the non-appearing defendants' liability. We find appellants' remainin g claims unavailing. Accordingly, we will reverse in part an d affirm in part the District Court's orders.

I. Background

Naomi and Charles Greenleaf filed this diversity ac tion in March, 1990, against ten defendants, including Owen s and Garlock, both manufacturers of asbestos products. T he complaint alleged that occupational exposure to asb estos products produced, or used by, the various defendan ts had caused Mr. Greenleaf to contract mesothelioma, a ca ncer caused exclusively by asbestos inhalation. Mr. Gree nleaf sought damages for pain and suffering, and Mrs. Gre enleaf sought damages for loss of consortium. Appellants f iled answers denying responsibility and asserted crosscl aims for contribution against all co-defendants.

Two months after filing their federal action, the

Greenleafs filed a state action in the Delaware Cou nty Court of Common Pleas against five Pennsylvania defendants alleging identical claims. Unfortunately , Mr. Greenleaf died from mesothelioma soon thereafter, a nd Mrs. Greenleaf pursued his federal and state claims as e xecutrix of his estate. In July, 1991, the Judicial Panel on Multidistrict Litigation stayed Greenleaf's federal action and transferred it, along with other pending federa l asbestos related personal injury actions, to Judge Weiner in

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1. Our resolution of these issues makes it unnecess ary to address appellants' arguments (1) that the award for loss o f consortium was excessive, and (2) that the judgment must be altere d to set-off the Manville Trust's share of the liability for Greenle af's injuries.

4United States District Court for the Eastern Distri ct of

Pennsylvania.

While the federal action was stayed, Greenleaf purs ued her state action, which proceeded to a reverse bifu rcated trial in January 1995. Under this format, damages w ere considered in Phase I and liability in Phase II. Th e jury returned a Phase I verdict assessing damages of $15 1,870 for the estate, and $37,500 for loss of consortium.

Greenleaf filed a motion for additur. Prior to commencement of Phase II, however, Greenleaf settle d with the two non-bankrupt Pennsylvania defendants and

executed releases in their favor. The record does n ot
disclose the settlement terms. Pursuant to Greenlea f's request, the Court of Common Pleas marked the state action "settled, discontinued and ended" on January 24,

1995.

Two years later, Greenleaf reactivated this federal action. Appellants filed motions for summary judgment conte nding that Pennsylvania's "one satisfaction" rule barred relitigation of Greenleaf's asbestos claims in fede ral court, and alternatively that issue preclusion prevented relitigation of damages. The District Court denied both motions. Once again, trial proceeded in a reverse b ifurcated format. Owens and Garlock were the only defendants to appear and actively participate in the trial.2 The jury's Phase I verdict fixed damages at $250,000 for the e state and $1.6 million for loss of consortium. Greenleaf' s trial presentation in Phase II focused primarily upon establishing their liability for Mr. Greenleaf's in juries. Appellants also presented evidence to prove the non appearing defendants' liability on their crossclaim s. The jury's Phase II verdict found Owens and Garlock exc lusively liable for those damages and absolved all non-appea ring defendants of liability for Greenleaf's injuries.

Appellants filed separate post verdict motions requ esting judgment notwithstanding the verdict, a new trial,

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2. The District Court granted defendants John Crane Inc., Chesterton, Inc., and SEPCO's motions for summary judgment dism issing them from the action. The remaining defendants (Johns-Manvill e, Owens-Illinois, Uniroyal, Fireboard, and Hopeman Brothers) did not appear at trial.

5remittitur, and modification of the judgment. These motions

asserted numerous grounds for relief including clai ms that Greenleaf 's prior state settlement had preclusive effect upon this subsequent federal action, and that a new trial was required on appellants' crossclaims regarding t he nonappearing defendants' liability. Owens and Garlock appeal from the District Court's orders denying these moti ons.

II. Discussion

A. Preclusive Effect of the Prior State Litigation

Appellants claim that Pennsylvania's "one recovery" rule barred Greenleaf 's entire action, and alternativel y, that Pennsylvania's doctrine of issue preclusion estoppe d Greenleaf from relitigating damages in federal cour t. To determine the preclusive effect of Greenleaf's prio r state action we must look to the law of the adjudicating state. See Huck v. Dawson, 106 F.3d 45, 48 (3d. Cir. 1997) ; O'Leary v. Liberty Mutual Ins. Co., 923 F.2d 1062, 1064 (3d Cir. 1991); Gregory v. Chehi, 843 F.2d 111, 116 (3d Cir. 1988). We must give the acts of Pennsylvania's cour ts the

same full faith and credit in federal court that th ey would enjoy in Pennsylvania's courts. See Gregory, 843 F. 2d at 116 (citing 28 U.S.C. S 1738). Because the District Court's application of these doctrines solely involves ques tions of law our review is plenary. See Huck, 106 F.3d at 48 ; O'Leary, 923 F.2d at 1065.

1. Pennsylvania's "One Satisfaction" Rule

Under Pennsylvania law:

A plaintiff who is injured at the hands of m ore than one tort-feasor may sue and recover a judgme nt against any one or all of the tort-feasors a nd may attempt to collect the damages awarded by th e judgment against any one or all of them. How ever, although a plaintiff may obtain a judgment a gainst several tort-feasors for the same harm, he o r she is entitled to only one satisfaction for that h arm.

6Brandt v. Eagle, 602 A.2d 1364, 1367 (Pa. Super. Ct . 1992)

(en banc) (citing Thompson v. Fox, 192 A. 107 (Pa. 1937)); see Franklin Decorators, Inc. v. Kalson, 479 A.2d 3 (Pa. Super. Ct. 1984). "[T]he `one satisfaction' rule ba rs a subsequent suit against another tortfeasor only whe re the prior proceedings can reasonably be construed to ha ve resulted in a full satisfaction of the plaintiff's claim." Frank v. Volkswagenwerk, A.G. of W. Germany, 522 F.2d 321
, 324-26 (3d Cir. 1975). Full satisfaction may arise from a

settlement with less than all tortfeasors. See id. at 326. Determining whether a plaintiff has been fully sati sfied through a settlement, however, involves a highly fa ctually sensitive analysis of "the circumstances of the pri or settlement to see whether the satisfaction . . . `r epresent[ed] the true value of the claim.' " Frank, 522 F.2d at 326 (quoting Blanchard v. Wilt, 188 A.2d 722 (Pa. 1963) ). The party asserting "one satisfaction," therefore, has the burden to provide the court with record evidence of the circumstances surrounding the settlement. The recor d in this case, however, contains virtually no evidence relating to Greenleaf 's state settlement. Because appellant s have failed to carry their burden, we cannot conclude th at Greenleaf 's federal action was barred by Pennsylva nia's one

satisfaction rule.3

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3. Appellants rely almost exclusively upon Brandt v . Eagle, 602 A.2d 1364, to support their "one satisfaction" claim. Br andt belongs to a line of Pennsylvania cases standing for the proposition that where a plaintiff obtains a judgment and the "judgment is marked sati sfied . . . [Pennsylvania] law presumes that full satisfaction for the harm incurred has been received." Id. at 1367; see Hilbert v. Rot h, 149 A.2d 648 (Pa. 1959) ("[W]hen the plaintiff has [a judgment] marke d satisfied of record, the common law assumption that he is satisfied may reasonably be permitted to operate."); Frank, 522 F.2d at 326. Co urts have construed this conclusive presumption narrowly applying it on ly to cases where there has been a "judgment entered as satisfied" on the docket. See Blanchard, 188 A.2d at 725 (noting that Hilbert "mu st be limited to its own factual situation"). As the District Court corr ectly noted, however, "this is not a case where a judgment was adjudicate d let alone satisfied." Accordingly, we find appellants' reliance upon this line of cases misplaced.

72. Issue Preclusion

Under Pennsylvania law, issue preclusion applies wh ere:

(1) the issue decided in the prior adjudicat ion wa s identical with the one presented in the late r action;

(2) there was a final judgment on the merits ;

(3) the party against whom the plea is asser ted wa s a party or in privity with a party to the prio r adjudication; and

(4) the party against whom it is asserted ha s had a full and fair opportunity to litigate the issue i n question in a prior action.

Dici v. Commonwealth of Pa., 91 F.3d 542, 548 (3d C ir. 1996)(citing Shaffer v. Smith, 673 A.2d 872, 874 (P a. 1996), and Safeguard Mut. Ins. Co. v. Williams, 345 A.2d 6 64, 668 (Pa. 1975)). The parties agree that this is the cor rect standard and that factors one, three, and four are present in this case. They disagree, however, regarding the second factor: whether the state jury's damages verdict is a "final judgment."

The Pennsylvania Supreme Court consults section 13 of the Restatement (Second) of Judgments to define "fi nal judgments" for purposes of issue preclusion. See Sh affer, 673 A.2d at 875. Section 13 provides:

The rules of res judicata are applicable onl y when a final judgment is rendered. However, for pur poses of issue preclusion (as distinguished from merg er and bar), "final judgment" includes any prior ad judication

of an issue in another action that is determ ined to be sufficiently firm to be accorded preclusive effect.

Restatement (Second) of Judgments S 13 (1982). The comments to section 13 emphasize that issue preclus ion is applicable when it is determined "that the decision to be carried over was adequately deliberated and firm, e ven if not final in the sense of forming the basis for a j udgment already entered." Id. S 13 cmt. g.

[To require that] a final judgment in the st rict sense

has been reached in the first action can inv olve

8hardship--either needless duplication of eff ort and

expense in the second action to decide the s ame issue, or, alternatively, postponement of decision of the issue in the second action for a possibly lengthy period of time until the first action has gone to a co mpletefinish. In particular circumstances the wisest cours e is to regard the prior decision of the issue as fi nal for the purpose of issue preclusion without awaiting the end judgment.

Id. Accordingly, the Restatement recognizes that th e finality inquiry focuses upon "whether the conclusion in que stion is procedurally definite." Id. Section 13's comments p rovide a number of factors to be considered in this regard:

(1) whether the prior decision was "adequate ly deliberated and firm" and not "avowedly tent ative";

(2) whether the parties were fully heard;

(3) whether the court supported its decision with a reasoned opinion;

(4) whether the court's prior decision was s ubject to appeal or was in fact reviewed on appeal.

Id. One of section 13's illustrations provides an e xample particularly instructive in this appeal:

In a jurisdiction that permits "split" trial s (a trial of liability followed, if liability is found, b y a separate trial to ascertain the damages), the jury in a neg ligence case finds for the plaintiff A as to liability, t he defendant B having denied his own negligence and pleaded contributory negligence on the part of A. Un der the law of the jurisdiction, B cannot appeal at this point as there is no judgment that qualifies as final for that purpose; an appealable judgment would be rea ched later, when, in the second phase of the tria l, another jury assessed the damages. But prior to the second phase, the jury's verdict as to liability ma y be held

conclusive as to the issues of A's and B's n egligence in any other action between them in which the s ame issues appear.

Id. S 13 cmt. g, illus. 3 (emphasis added).

9We conclude that Greenleaf's prior state court jury

verdict on damages is a "final judgment" under sect ion 13 and carries issue preclusive effect upon that issue in this action. As the above-quoted illustration indicates, 4 weighing

the factors set forth in section 13's comments favo rs a finding of sufficient finality in circumstances lik e those before us. The parties were "fully heard" on the is sue of damages and the jury's verdict was "adequately deli berated and firm." The jury's decision would have been appe alable following Phase II, had no settlement occurred. Pur suant to the settlement, the Greenleafs voluntarily surrende red their right to further review, and the dismissal order en tered pursuant to that settlement assured that the assess ment of damages was "procedurally definite" and not subject to change. Under these circumstances, we perceive no justification for permitting the Greenleafs to reli tigate the amount of their damages.5

The District Court concluded that the state jury's damages verdict did not preclude relitigation of th e damages issue in federal court for two reasons. We find both unpersuasive. First, the District Court cited our decision in Dici v. Commonwealth of Pa., 91 F.3d 54 2 (3d Cir. 1996), for the proposition that settlement fol lowing a reverse bifurcation verdict on damages is not an adjudication. Dici does not stand for that proposit ion,

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4. Greenleaf attempts to distinguish this illustrat ion by arguing that it, like the comments to section 13 generally, deals wi th a "same party" situation and neither Owens nor Garlock were partie s to the state proceedings. While it is true that the comments and illustrations deal predominantly with "same party" situations, issue p reclusion in Pennsylvania does not require identity of parties. Phillip v. Clark, 560 A.2d 777, 780 (Pa. Super. Ct. 1989) (" `There is no requirement that there be an identity of parties in the two actions in order to invoke [issue preclusion].' " (quoting Mellon Bank v. Rafsky, 535 A.2d 1090, 1093 (Pa. Super. Ct. 1987))); cf. Burlington Northern R.R. Co . v. Hyundai Merchant Marine Co., Ltd., 63 F.3d 1227, 1232 (3d Cir. 1995)

.

5. We observe that our conclusion is consistent wit h the modern trend to "relax[ ] traditional views of the finality require ment by applying issue preclusion to matters resolved by preliminary rulin gs or to determinations of liability that have not yet been completed by an award of damages or other relief." Wright et al., Federal Practice and Procedure S 4434 at 321 (1981 & 1998 Supp.).

10however. In Dici this court considered whether the factual

findings of a state workmen's compensation referee had preclusive effect in a subsequent federal court act ion for

violations of Title VII and state antidiscriminatio n statutes.
Id. at 545-47. The case involved neither a reverse bifurcated proceeding, nor a jury verdict, nor a settlement. I d. Instead, we determined that issue preclusion did not apply b ecause the issues presented in the two proceedings were no t the

same. Id. at 549-50.

The District Court's second reason for refusing to apply issue preclusion was the preliminary verdict's lack of immediate appealability. While noting that appealab ility is only a factor for determining the appropriateness o f issue preclusion, the Court relied upon section 28(1) of the Restatement (Second) of Judgments for the propositi on that issue preclusion did not apply because Greenle af "could not, as a matter of law, have obtained revie w of the preliminary verdict." We find the District Court's reliance upon the preliminary verdict's appealability mispla ced.

Section 28 establishes various exceptions to the do ctrine of issue preclusion. It provides in relevant part:

Although an issue is actually litigated and determined by a valid and final judgment, and the deter mination is essential to the judgment, relitigation of t he issue in a subsequent action between the parties is not precluded in the following circumstances.

(1) The party against whom preclusion is so ught could not, as a matter of law, have obtained review of the judgment in the initial action.

Restatement (Second) of Judgments S 28 (1982). According to the comments, review is "unavailable a s a matter of law" where "the controversy has become mo ot, or because the law does not allow review of the partic ular category of judgments." Id. S 28 cmt. a. The commen ts further provide that the exception does not apply w here "review is available but not sought." Id.

While the Pennsylvania Supreme Court has adopted section 28, Clark v. Troutman, 502 A.2d 137 (Pa. 19 85), it has not specifically addressed the scope of the sec tion 28(1)

11exception. This court, however, has addressed simil ar

issues regarding the significance of appealability for purposes of issue preclusion under the Restatement. Our decisions hold that decisions not final for purpose s of appealability may nevertheless be sufficientlyfinal to have issue preclusive effect. For example, in In re Brow n, 951 F.2d 564, 569-70 (3d Cir. 1991), we concluded that a state court's partial summary judgment establishing a deb tor's liability in a mortgage foreclosure action was suff iciently final to have issue preclusive effect in a subseque nt bankruptcy proceeding, even though the judgment was not final for purposes of appealability because the amo unt due on the mortgage remained to be determined in state court. We explained:

Unlike claim preclusion, the effectiveness o f issue preclusion, sometimes called collateral esto ppel, does not require the entry of a judgment, final i n the sense of being appealable. . . . `Finality for pur poses of issue preclusion is a more `pliant' concept than i t would be in other contexts.' Finality `may mean littl e more than that the litigation of a particular issue ha s reached such a stage that a court sees no really goo d reason for permitting it to be litigated again.'

Id. at 569 (quoting Dyndul v. Dyndul, 620 F.2d 409, 412 & n.8 (3d Cir. 1980)). We determined that issue precl usion was justified observing that (i) the party against whom issue preclusion was asserted was represented by co unsel in the prior state action, (ii) hearings were held in state court, (iii) the trial court's summary judgment ord er was not "tentative," and (iv) allowing relitigation in bankruptcy court would waste judicial resources. Id. at 570.

Similarly, in Burlington Northern R.R. v. Hyundai Merchant Marine Co., 63 F.3d 1227, 1233 n.8 (3d Cir

. 1995), we found a denial of summary judgment suffic iently final to justify issue preclusion in a subsequent a ction even though it was not immediately appealable as a matte r of law. We noted that (i) the party was represented by counsel in the prior action, (ii) the issues were genuinely contested, and (iii) the lower court's denial of summary judgm ent was
not "tentative." See id. These elements are also sa tisfied in this case. In the prior state action (i) Greenleaf was

12represented by counsel, (ii) the issue of damages w as

genuinely contested in a jury trial, (iii) the verd ict was not tentative, and (iv) allowing damages to be relitiga ted in federal court clearly wasted judicial resources.

We do not attempt to fully chart section 28(1)'s sc ope in this case. We simply hold that reading section 13 a nd section 28(1) together, we find that the lack of im mediate appealability of Greenleaf's preliminary state dama ges verdict does not operate to prevent its issue precl usive effect in this case. Appellate review would have be en available had the Greenleafs not chosen to settle. 6 Allowing Greenleaf to relitigate damages in federal court wa s unnecessarily duplicative and a waste of valuable j udicial resources -- the precise evils that issue preclusio n is designed to combat. See Shaffer, 673 A.2d at 875 (" [Issue preclusion] relieve[s] parties of the cost and vexa tion of

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6. While we find it unnecessary to define section 2 8(1)'s scope to resolve this case, we observe that courts typically apply i t to the narrow set of judgments where a party has no right to appeal at a ny time because such appeals are wholly unavailable "as a matter of law." See Wright et al., Federal Practice and Procedure S 4433 at 315 ( 1981 & 1998 Supp.)("[Courts must distinguish] between decisions that could not ever be appealed and decisions that will become eligible for appeal in the

future. Relaxation of the traditional views of fina lity has created the opportunity to rest preclusion on a decision that c annot be appealed at present but may be appealed and reversed in the fut ure."). For example, some courts have applied section 28(1) to "[a] Dist rict Court's jurisdictional findings incident to remand" because remand orders are wholly unappealable as a matter of law under 28 U.S .C. S 1447(d). See, e.g., Nutter v. Monongahela Power Co., 4 F.3d 319, 322 (4th Cir. 1993); Southern Leasing Corp. v. Tufts, 804 P.2d 1321, 132 3 (Ariz. Ct. App. 1991). Similarly, other courts have applied section 28(1) to allow a party who generally prevailed in a prior judgment, but lo st on certain issues, to relitigate the issues upon which they were unsuc cessful because the party was " `not aggrieved and could not appeal the judgment [as a matter of law].' " See, e.g., Lombardi v. City of E l Cajon, 117 F.3d 1117, 1122 (9th Cir. 1997) (quoting Anderson-Cottonwood D isposal Serv. v. W.C.A.B., 135 Cal.App.3d 326, 332, 185 Cal.Rptr. 33 6, 340 (1982)); In re DES Litig., 7 F.3d 20, 24 (2d Cir. 1993) see also H ernandez v. Region Nine Housing Corp., 684 A.2d 1385, 1393 (N.J. 1996) (section 28(1) prevented issue preclusion of EEOC's adverse decisi on on Title VII claim because no appellate review of EEOC decision exists ). The Greenleafs' preliminary verdict does not fall into this categor y of cases.

13multiple lawsuits, conserve[s] judicial resources, and, by

preventing inconsistent decisions encourage[s] reli ance on adjudication.").

B. Adequacy of the Jury Instructions

Appellants assert that the District Court's jury instructions inadequately informed the jurors regar ding Pennsylvania law on asbestos related injuries. Our

standard of review over this issue is mixed. We exe rcise plenary review to determine whether the District Co urt's jury instructions misstated Pennsylvania law. See W oodson v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1997 ). In the absence of a misstatement, however, we review the D istrict Court's decisions regarding jury instructions for a buse of discretion. See Bhaya v. Westinghouse Elec. Corp., 922 F.2d 184, 191 (3d Cir. 1990) ("Unless a trial judge miss tates the law, the judge's rulings on points for charge may b e reversed only if the judge committed an abuse of discretion.").

Appellants raise two arguments to persuade us that the District Court's instruction misstated Pennsylvania law. First, they both claim that the court failed to spe cifically instruct the jury regarding the Eckenrod "frequency
, regularity and proximity" test, which they claim is the exclusive rule in asbestos cases under Pennsylvania law. Second, Garlock contends that the court erred in no t submitting its proposed "de minimis" exposure defen se to the jury.

The District Court's instruction in this case charg ed the jury:

. . . [F]ocus on the asbestos products manuf actured and distributed by each particular defendant . . . .[If] the product in [sic] particular of a defenda nt was
defective in the sense that it lacked an ade quate warning, the defendant is liable if that con dition is the legal cause of the harm, that is if it is a substantial factor in bringing about the harm to Charles Greenleaf.

. . . A substantial factor is a real actual factor even though the result may be unusual, unforseen, unforeseeable or unexpected but it is not an imaginary

14or fanciful factor having no connection or o nly an

insignificant connection with the injury. Th ere may be more than one substantial factor in bringing about the harm suffered by the plaintiff. . . . What t his means in

this case is that for a defendant to be liab le, plaintiffs must show by a fair preponderance of the evi dence that Charles Greenleaf was exposed to that defend ant's product and that such exposure was a substan tial factor in bringing about his injuries.

(JA 434-443) (emphasis added).

The District Court's charge thus told the jury that the plaintiffs had the burden of proving proximate caus e and explained that concept to them. It further cautione d that the jury must conduct a separate analysis of the ev idence, and make a separate decision on, the proximate caus e issue with respect to each defendant. The District Court's charge on these points is entirely consistent with our understanding of the Pennsylvania case law in asbes tos

cases.

We do not understand the appellants to contend that anything said by the District Court is inconsistent with Pennsylvania law. Rather, they contend that the Sup erior Court in Eckenrod v. GAF Corp., 544 A.2d 50, 53 (Pa

. Super. Ct. 1988), held that any charge in an asbest os case is deficient if it fails specifically to require ev idence of "the frequency of the use of the product and the regular ity of plaintiff's employment is proximity thereto."

In Eckenrod, the Pennsylvania Superior Court affirm ed a grant of summary judgment in favor of various asbes tos manufacturers because the plaintiff had failed to p rovide sufficient evidence of the decedent's exposure to t he defendants' products. The Court summarized the prin ciples governing liability in an asbestos action:

In order for liability to attach in a produc ts liability action, the plaintiff must establish that th e injuries were caused by a product of the particular manufacturer or supplier. Additionally, in o rder for a plaintiff to defeat a motion for summary jud gment a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufac turer's

15product. Therefore, a plaintiff must establi sh more

than the presence of asbestos in the workpla ce; he must prove that he worked in the vicinity of the products use. Summary judgment is proper whe n the plaintiff has failed to establish that the d efendant's products were the cause of plaintiff's injur y.

* * *

We acknowledge that the facts establish that the decedent on occasion was exposed to asbestos ; there is no evidence, however, as to the regularity o r nature of decedent's contact with asbestos. Moreover, there is no testimony establishing that Mr. Eckenrod wor ked with asbestos supplied and/or manufactured by Por ter or A- Best or any of the other appellees. The mere fact that appellees' asbestos products came into the f acility does

not show that the decedent ever breathed the se specific asbestos products or that he worked where th ese asbestos products were delivered.

Id. at 53.

We do not read Eckenrod as establishing any additio nal or special requirements for jury instructions in as bestos cases. Rather, we read it as a straightforward appl ication of traditional principles of summary judgment and prox imate cause law to a factual pattern, various permutation s of which arise frequently in asbestos cases.

Accordingly, it is not surprising to us to find pos tEckenrod opinions in which the Superior Court has sustained jury verdicts where the court's discussio ns did not contain the "frequency, regularity and proximit y" test appellants urge as essential.7See, e.g., Juliano v. Johns-

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7. We find further support for our conclusion in Jo be v. W.P. Metz Refining, 664 A.2d 1015 (Pa. Super. Ct. 1995), wher e the Superior Court extended the Eckenrod principles of asbestos liabil ity to product liability cases involving cadmium, another carcinogenic subst ance. The court

discerned from the "Eckonrod line of cases" that an asbestos plaintiff must prove three elements: (i) that the employee/de cedent was at a particular work site, (ii) that the employee/decede nt was exposed to carcinogenic-containing products at that site, and (iii) that a

defendant's carcinogenic-containing products was [sic] at the t hat particular work site at or about the same time as the employee/dece dent. Id. at 1019. Notably absent from the court's summary of asbestos liability law was the Eckenrod "frequency, regularity and proximity" formula.16Manville Corp., 611 A.2d 238, 239 (Pa. Super. Ct. 1 992);

Ottavio v. Fireboard Corp., 617 A.2d 1296, 1298 (Pa . Super. Ct. 1992); Lilley v. Johns-Manville Corp., 596 A.2d 203, 209 (Pa. Super. Ct. 1991). We find Lilley v. Johns-Manv ille Corp., 596 A.2d 203, particularly instructive because it i nvolved facts strikingly similar to this appeal. There, as here, the Superior Court, considered a challenge to the adequ acy of jury instructions in an appeal from a judgment in f avor of an asbestosis plaintiff. The trial court instructed the jury that the plaintiff must prove that the defendant's product was a "substantial factor in bringing about the har m" and

that:

plaintiff must present evidence which establ ishes that

he inhaled asbestos fibers which came from t he manufacture's [sic] product. It is not enoug h simply to show that the product was delivered to the w ork place. He must show that he actually worked in the vicinity of the product and that he inhaled asbestos fibers from that product . . . Remember there may be sev eral substantial factors. There are no requiremen ts [sic] there be a single substantial factor. As lon g as youfind

that there is a real factor that's not somet hing fanciful or something imaginary, but something that c ame about because of what happened.

Id. The Superior Court concluded that this"jury cha rge adequately comports with the mandate of Eckenrod an d that the trial court was not required to provide an y more precise explanation than that actually given." Id. at 210. While relying heavily upon Eckenrod the court did n ot invoke a "frequency, regularity and proximity" test . See id.

at 209.

In the absence of a misstatement, we review the Dis trict Court's jury instructions for abuse of discretion. We find no

abuse of discretion in the District Court's refusal to include appellants' proposed "frequency, regularity, and pr oximity"

instructions.8

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8. We find no merit in appellants' claim that the D istrict Court's Phase II verdict form was patently insufficient and overs implified. Appellants submitted proposed verdict forms to the court, each posing three distinct

17We similarly find Garlock's assertion that the Dist rict

Court misstated Pennsylvania law by omitting Garloc k's proposed "de minimis" exposure defense from the jur y instruction unpersuasive. Again, we take guidance f rom Lilley where the Superior Court rejected a virtuall y identical argument stating that it was "unaware of any requir ement of Pennsylvania law that the jury charge must inclu de an instruction on de minimis exposure." Id. at 210. We have similarly found no such requirement, and conclude t hat the District Court did not err by refusing this instruc tion.

C. Attorney Misconduct

Appellants next contend that a new trial is require d because allegedly inflammatory statements made by Greenleaf 's counsel in closing arguments prejudice d the jury. We review District Court decisions whether to grant a new trial because of alleged attorney misconduct fo r abuse of discretion. Blanche Road Corp. v. Bensalem Towns hip, 57 F.3d 253, 264 (3d Cir. 1995); Fineman v. Armstrong World Indus. Inc., 980 F.2d 171, 207 (3d Cir. 1992). This is because we recognize that " `[i]n matters of trial procedure . . . the trial judge is entrusted with wide discre tion because he [or she] is in a far better position tha n we to appraise the effect of the improper argument of cou nsel.' " Fineman, 980 F.2d at 207 (quoting Reed v. Philadelp hia Bethlehem & New England R.R. Co., 939 F.2d 128, 133 (3d Cir. 1991)). A new trial may be granted only where the improper statements "made it `reasonably probable' that the verdict was influenced by prejudicial statements." Id. (citing Draper v. Airco Inc., 580 F.2d 91, 94 (3d Cir. 1978 )).

Appellants point to three alleged incidents of misc onduct. First, they argue that Greenleaf 's counsel suggest ed that

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questions. The District Court, however, fashioned i ts own form, which presented one question: "Are the following defendan ts liable?" A list of the defendants followed the question. As we have co ncluded above, the court's jury instructions adequately covered the su bstantive law's requirements regarding liability. They were relativ ely straightforward and

it was not an abuse of discretion for the District Court to refuse to repeat them in the verdict form.

18Greenleaf would not recover anything unless the jur y

returned a verdict against the defendants. This was allegedly improper and prejudicial because Greenlea f had already received compensation for their injuries in the state settlement. Second, Garlock contends that counsel distracted the jury's attention from the relevant i ssues by irrelevant commentary on the failure of the absent defendants to defend. Finally, appellants complain that Greenleaf's counsel suggested to the jury that a ve rdict for plaintiffs would "send a message to the folks at Ow ens."9

These comments do not approach the level of attorne y misconduct found to prejudice the jury in our prece dents. See, e.g., Blanche Road, 57 F.3d at 264; Fineman, 9 80 F.2d at 207-10; Draper, 580 F.2d at 95. We conclude that it is not reasonably probable that the verdict was prejud icially influenced by Greenleaf 's counsel's remarks, and w e find

no abuse of discretion in the District Court's deni al of appellants' requests for a new trial on this ground

.

D. Denial of Motions For a New Trial

Finally, appellants contend that the District Court erred when it denied their motions for a new trial. They present two arguments. First, Garlock presents a classic insufficiency of the evidence argument claiming tha t the evidence does not support a finding that it is liab le for

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9. Owens Corning cites Foster v. Crawford Shipping Co., Ltd., 496 F.2d 788, 792 (3d Cir. 1974), for the proposition that i nviting the jury to "send a message" is by itself outrageous enough to warrant a new trial, particularly in a strict liability case where condu ct is not at issue. We find Foster unhelpful. Foster did not erect a per s e rule against invitations to a jury to "send a message", nor did it involve products liability. In Foster, we granted a new trial becaus e the jury had been prejudiced by counsel's improper remarks regarding (i) the disparity of wealth between parties (ii) the defendant's foreign ownership, and (iii)

the plaintiff 's potential burden upon the community if the defendant was not found liable. See id. at 792. We have relied up on Foster to hold that it is improperly prejudicial for counsel to appeal to financial disparity between parties before the jury. See Draper, 580 F. 2d at 95. Greenleaf 's counsel did not emphasize the parties' financial di sparity and none of the remaining Foster factors are present in this ca se. Accordingly, we find Owens Corning's argument unavailing.

19Greenleaf 's injuries. Second, both appellants clai m that the

verdict absolving the non-appearing defendants is a gainst the overwhelming weight of the evidence. The Greenl eafs respond that appellants are precluded from assertin g these claims under our holding in Yohannon v. Keene Corp. , 924 F.2d 1255, 1262 (3d Cir. 1991).

1. The Verdict Against Garlock

We cannot reach the merits of Garlock's first claim because it did not move for judgment as a matter of law under Rule 50 before the jury retired to deliberate . It is well settled that a party who does not file a Rule 50 mo tion for judgment as a matter of law at the end of the evide nce is not thereafter entitled to have judgment entered in its favor notwithstanding an adverse verdict on the ground th at there is insufficient evidence to support the verdi ct. See Lowenstein v. Pepsi-Cola Bottling Co., 536 F.2d 9, 11 (3d Cir. 1976). However, "the failure to move for a dir ected

verdict at the close of all evidence does more than limit an aggrieved party's remedy to a new trial. In this Ci rcuit, it wholly waives the right to mount any post-trial att ack on the sufficiency of the evidence." Yohannon, 924 F.2 d at 1262; see also Stadtlander Drug Co., Inc. v. Brock Control Sys. Inc., 174 F.R.D. 637, 641 (W.D. Pa. 1997)(refu sing to consider Rule 59 motions for a new trial based upon insufficiency of the evidence where the movant did not move for judgment as a matter of law before the jur y retired to deliberate). The record does not indicate that G arlock moved for judgment as a matter of law; its failure to do so operates as a waiver with fatal consequences to its insufficiency of the evidence claim in this appeal. 10

2. The Verdict in Favor of the Non-Appearing Defend ants

Appellants also claim that the jury's verdict is ag ainst the clear weight of the evidence to the extent it absol ved the non-appearing defendants of liability. They ask for a new

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10. Garlock claims that its proposed jury instructi on number one was a request for judgment as a matter of law. The instru ction cannot be so

construed.

20trial at which they will once again seek a judgment in their

favor on their cross-claims against the non-appeari ng defendants. We disagree with Greenleaf 's suggestio n that Yohannon precludes our consideration of this claim.

A court may order a new trial upon the motion of a party or sua sponte where there is insufficient evidence to support the verdict or where the verdict was agains t the weight of the evidence. Fed. R. Civ. P. 59(a)-(d); Wright & Miller, Federal Practice & Procedure S 2806 (1995). Yohannon circumscribes a court's authority to act u pon such a motion when a party is arguing that the evid ence is insufficient to support a verdict against it, and i t is, accordingly, entitled to judgment in its favor as a matter of law. Assuming that there is no substantial evidence to support the verdict, such an argument can be as successfully argued at the close of all the evidenc e, and Yohannon takes the position that a failure to advan ce it at that time waives the right to a new trial based on insufficiency of the evidence.

The appellants here are not arguing insufficiency o f the evidence, however. They acknowledge, as they must, that they had the burden of proof on their cross-claims, and they do not take the extreme position that the stat e of the record entitles them to judgment, i.e., that eviden ce the jury was not at liberty to reject dictated a judgme nt in their favor.11 Rather, they take the position that the co urt, utilizing its authority under Rule 59(a), should cr itically

evaluate the evidence and exercise its discretion i n favor of a new trial because the probative evidence in their favor as contrasted with that opposed is overwhelming. This is not a position that can be taken in support of a Rule 5 0 motion for judgment as a matter of law. Wright & Miller, S 2524, at 255-56 (indicating that a court in response to a Rule 50 motion may not consider the credibility of the witn ess or

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11. A litigant with the burden of persuasion is ent itled to judgment as a matter of law at the close of the evidence only in the very rare case where a decision in its favor is mandated by eviden ce the trier of fact is not at liberty to disbelieve and no inference contr ary to its position can be drawn from the undisputable facts. Wright & Mill er, S 2535, at 328-

29.

21the weight of the evidence and must draw all infere nces in

favor of the party against whom the motion is made)

.

We conclude that Yohannon was not intended to forec lose the grant of a new trial to parties in appellants' position.

Given the state of the record at the close of the e vidence they had every reason to expect that the jury, if i t understood and rationally applied the court's instr uctions, would decide that they had carried their burden of persuasion. Moreover, they were not in a position t o argue that evidence which the jury was not entitled to re ject required it to infer that the exposure to each of t he products of the non-appearing defendants was a substantial factor in causing Greenleaf's mesotheli oma. Under these circumstances appellees did not waive t heir rights under Rule 59 by failing to move under Rule 50 for judgment as a matter of law.

We now turn to the merits of appellants' claim. We review a District Court's decision whether to grant a new trial on the basis that the verdict is against the weight of the

evidence for abuse of discretion. Roebuck v. Drexel Univ., 852 F.2d 715, 735 (3d Cir. 1988). Deferential revie w is appropriate when considering whether a verdict is a gainst the weight of the evidence "because the district co urt was
able to observe the witnesses and follow the trial in a way that we cannot replicate by reviewing a cold record ." Id. "[N]ew trials because the verdict is against the we ight of the evidence are proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overtur ned or

shocks our conscience." Williamson v. Consolidated Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).

With this deferential standard in mind we consider the record. Five co-defendants, Johns-Manville, Owens-I llinois, Uniroyal, Fireboard, and Hopeman Brothers, did not appear at trial to defend against Greenleaf's claims and a ppellants' counterclaims. The following uncontested evidence w as presented against them at trial. In his video taped deposition Mr. Greenleaf described his occupational exposure to asbestos products. He worked as a shipf itter at Sun Ship for seven and one half years beginning in 1942. He did not personally handle asbestos materials, bu t he

22worked in ship hulls where asbestos dust "sift[ed] down all

the time" from asbestos containing pipe covering, m ud, cloth and paneling being used above him. He estimat ed that he was exposed to asbestos products 90% of his time at Sun Ship and specifically identified (i) Johns-M anville as a manufacturer of the products used there, and (ii) Hopeman Bros. as a contractor using asbestos there. Mr. Greenleaf also worked at New York Ship for eight mo nths as a shipfitter and experienced similar exposure to the same products for four of those months. This eviden ce thus establishes that Greenleaf was exposed to Johns-Man ville and Hopeman Bros. asbestos for almost eight years.

In 1953, Mr. Greenleaf began working at Westinghous e as a fabricator. He worked there, mainly building t urbines, for more than 30 years until he retired in 1986. Gr eenleaf testified that, during his time at Westinghouse, he was exposed to asbestos containing rope, cloth, block, gaskets, and pipe covering, and personally worked with rope and gaskets. When asked what he meant by "exposed" Mr. Greenleaf explained:

Exposed to it because it was the same thing. They might be working over top of you or right th ere next to you and like I say with the air--there was n o air conditioning or nothing. If you need any air , you opened an air hose someplace [sic] to give y ou some air, which didn't help this situation.

(JA 478). He estimated that he was exposed to cloth one third of his time, and block and pipe covering one quarter
of his time each. He described how asbestos dust fr om block cutting permeated the air, stating that "ever ything you went to get against, got against your clothes b ecause nobody went around cleaning these things up, you kn ow. It was all--it was on everything." (JA 481). Mr. Green leaf also

noted that when the asbestos dust mixture was combi ned with water to create asbestos mud "[the dust] went right up to the air." (JA 482). When asked which manufacture rs' asbestos products were used at Westinghouse he iden tified, among others, Johns-Manville and Owens-Illinois. Additionally, in another deposition Greenleaf was a sked whether he was exposed to one manufacturer's produc t

23more than another's during his tenure at Westinghou se. He

responded:

A: I would say Johns-Manville might have bee n the most popular, you know, the most used.

Q: Can you give us a percentage versus the o ther

ones?

A: I would say offhand maybe 50% would be th at

company.

(JA 372-73). Finally, Mr. Greenleaf stated that he never observed a warning on any of the asbestos products he saw at Sun Ship and Westinghouse.

James Cyrus, a coworker who spent 80% of his time o ver almost 30 years working with Greenleaf at Westingho use, provided additional evidence regarding Greenleaf's exposure. He testified that he and Mr. Greenleaf fr equently used asbestos cloth manufactured by, among others, Johns-Manville, Uniroyal, and Fireboard, and that t he cloth disintegrated from the heat and emitted asbestos du st. He
also testified that Mr. Greenleaf worked with Uniro yal gaskets. Thus, Cyrus's and Greenleaf's testimony established that Greenleaf had been exposed to Unir oyal, Fireboard and Owens-Illinois products for 30 years, and added an additional 30 years to his prior exposure to Johns-Manville products.

In addition to this, the non-appearing defendants' interrogatory answers were read to the jury. In the m, the non-appearing defendants admitted to selling or usi ng asbestos products. Finally, Greenleaf's expert witn ess testified, with a reasonable degree of medical cert ainty, that Greenleaf's exposure to asbestos in the workplace f rom 1942 to 1976 was "the kind of exposure that would h ave led to the development of mesothelioma." (JA 237).

The District Court instructed the jury that it must find essentially three elements to hold a defendant liab le for Greenleaf's injuries. The jury had to determine tha t (i) a defendant's asbestos product was defective because it lacked a warning, (ii) Greenleaf was exposed to tha t defendant's product, and (iii) exposure to the prod uct was a substantial factor in causing Greenleaf's mesothe lioma.

24The uncontested evidence satisfied each element wit h

respect to each of the non-appearing defendants. Fi rst, the non-appearing defendants admitted to producing or u sing asbestos products in their interrogatory answers, a nd Greenleaf's uncontested testimony established that he had never seen a warning on any of the defendants' prod ucts. Second, Greenleaf and Cyrus provided undisputed testimony that he was exposed to each defendant's a sbestos products: (i) Johns-Manville for approximately 38 y ears, (ii) Fireboard, Uniroyal and Owens-Illinois for 30 years , and (iii) Hopeman Bros. for approximately 8 years. Fina lly, Greenleaf's expert testified that Greenleaf's expos ure to these products was the kind of exposure that caused

mesothelioma.

While the jury was not required to credit all of th is uncontroverted evidence, and while it was not requi red to

draw the causation inference for which Greenleaf contended, the record must be evaluated in light of the fact that the jury found for the plaintiff against Garlo ck and Owens. The jury found Garlock and Owens liable on t he basis of virtually identical evidence and in the fa ce of a rigorous defense. Particularly puzzling is the jury 's finding

that Johns-Manville was not liable when the evidenc e established that Greenleaf's exposure to Manville p roducts far exceeded his exposure to either Garlock or Owen s products.

Given the evidence that the jury must have credited in returning the verdicts against Garlock and Owens, w e can find no rational explanation for the jury's failure to find the non-appearing defendants liable as well. It may wel l be that the jury was reluctant to judge them liable without hearing their side of the story. But whatever may have been the reason for the verdicts in favor of the non-appeari ng defendants, we are left with the definite andfirm c onviction

that a mistake has been made and that a new trial o n the cross-claims is necessary to prevent a miscarriage of justice.

III. Conclusion

We will reverse the judgment of the District Court and

25remand for further proceedings consistent with this

opinion. On remand, the District Court will enter a judgment in the Greenleafs' favor against Garlock a nd

Owens in an amount consistent with the amount of damages awarded them in state court.12 It will con duct a

new trial on the crossclaims of Garlock and Owens a gainst the non-appearing defendants.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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12. We note that the District Court's September 2, 1997 order granted Greenleaf 's request for delay damages under Pennsy lvania law. The District Court's award of $135,433.22 in delay dama ges was calculated based upon the federal jury's damages assessment. B ecause we conclude that issue preclusion prevented relitigation of dam ages, the District Court will have to recalculate delay damages on rem and.

26