1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-26-1999

Greenleaf v. Garlock Inc

Precedential or Non-Precedential:

Docket 97-1820

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Recommended Citation

"Greenleaf v. Garlock Inc" (1999). 1999 Decisions. Paper 108.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/108
Filed 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 States District Judge 

for the District of Delaware, sitting by designation. 

 2 
 Catherine 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 Fiberglas 

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 this strict 

liability asbestos products action. We address six of the 

issues tendered for resolution. Appellants argue that: (1) 

Pennsylvania's "one satisfaction" rule precludes Greenleaf's 

entire federal action; (2) issue preclusion prevents 

relitigation of damages in federal court; (3) the District 

Court's jury instructions inadequately informed the jurors 

 3 
regarding Pennsylvania law; (4) inflammatory statements 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 against the 

clear weight of the evidence.1 

We agree with the appellants that issue preclusion 

prevented relitigation of damages in this action and that a 

new trial is required to consider the non-appearing

defendants' liability. We find appellants' remaining claims 

unavailing. Accordingly, we will reverse in part and affirm 

in part the District Court's orders. 

I. Background 

Naomi and Charles Greenleaf filed this diversity action in 

March, 1990, against ten defendants, including Owens and 

Garlock, both manufacturers of asbestos products. The 

complaint alleged that occupational exposure to asbestos 

products produced, or used by, the various defendants had 

caused Mr. Greenleaf to contract mesothelioma, a cancer 

caused exclusively by asbestos inhalation. Mr. Greenleaf 

sought damages for pain and suffering, and Mrs. Greenleaf 

sought damages for loss of consortium. Appellants filed 

answers denying responsibility and asserted crossclaims for 

contribution against all co-defendants. 

Two months after filing their federal action, the 

Greenleafs filed a state action in the Delaware County 

Court of Common Pleas against five Pennsylvania 

defendants alleging identical claims. Unfortunately, Mr. 

Greenleaf died from mesothelioma soon thereafter, and Mrs. 

Greenleaf pursued his federal and state claims as executrix 

of his estate. In July, 1991, the Judicial Panel on

Multidistrict Litigation stayed Greenleaf's federal action 

and transferred it, along with other pending federal 

asbestos related personal injury actions, to Judge Weiner in 

_________________________________________________________________ 

1. Our resolution of these issues makes it unnecessary to address 

appellants' arguments (1) that the award for loss of consortium was 

excessive, and (2) that the judgment must be altered to set-off the 

Manville Trust's share of the liability for Greenleaf's injuries. 

 4 
United States District Court for the Eastern District of 

Pennsylvania. 

While the federal action was stayed, Greenleaf pursued 

her state action, which proceeded to a reverse bifurcated 

trial in January 1995. Under this format, damages were 

considered in Phase I and liability in Phase II. The jury 

returned a Phase I verdict assessing damages of $151,870 

for the estate, and $37,500 for loss of consortium.

Greenleaf filed a motion for additur. Prior to 

commencement of Phase II, however, Greenleaf settled with 

the two non-bankrupt Pennsylvania defendants and 

executed releases in their favor. The record does not 

disclose the settlement terms. Pursuant to Greenleaf'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 contending 

that Pennsylvania's "one satisfaction" rule barred 

relitigation of Greenleaf's asbestos claims in federal court, 

and alternatively that issue preclusion prevented 

relitigation of damages. The District Court denied both 

motions. Once again, trial proceeded in a reverse bifurcated 

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 estate 

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 injuries. 

Appellants also presented evidence to prove the nonappearing defendants' liability on their crossclaims. The 

jury's Phase II verdict found Owens and Garlock exclusively 

liable for those damages and absolved all non-appearing 

defendants of liability for Greenleaf's injuries. 

Appellants filed separate post verdict motions requesting 

judgment notwithstanding the verdict, a new trial, 

_________________________________________________________________ 

2. The District Court granted defendants John Crane Inc., Chesterton, 

Inc., and SEPCO's motions for summary judgment dismissing them from 

the action. The remaining defendants (Johns-Manville, Owens-Illinois, 

Uniroyal, Fireboard, and Hopeman Brothers) did not appear at trial. 

 5 
remittitur, and modification of the judgment. These motions 

asserted numerous grounds for relief including claims 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 the nonappearing defendants' liability. Owens and Garlock appeal 

from the District Court's orders denying these motions. 

II. Discussion 

A. Preclusive Effect of the Prior State Litigation 

Appellants claim that Pennsylvania's "one recovery" rule 

barred Greenleaf 's entire action, and alternatively, that 

Pennsylvania's doctrine of issue preclusion estopped 

Greenleaf from relitigating damages in federal court. To 

determine the preclusive effect of Greenleaf's prior 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 courts the 

same full faith and credit in federal court that they 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 questions 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 more than 

 one tort-feasor may sue and recover a judgment 

 against any one or all of the tort-feasors and may 

 attempt to collect the damages awarded by the 

 judgment against any one or all of them. However, 

 although a plaintiff may obtain a judgment against 

 several tort-feasors for the same harm, he or she is 

 entitled to only one satisfaction for that harm. 

 6 
Brandt 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 bars a 

subsequent suit against another tortfeasor only where the 

prior proceedings can reasonably be construed to have 

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 satisfied 

through a settlement, however, involves a highly factually 

sensitive analysis of "the circumstances of the prior 

settlement to see whether the satisfaction . . . `represent[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 record in 

this case, however, contains virtually no evidence relating 

to Greenleaf 's state settlement. Because appellants have 

failed to carry their burden, we cannot conclude that 

Greenleaf 's federal action was barred by Pennsylvania's one 

satisfaction rule.3 

_________________________________________________________________ 

3. Appellants rely almost exclusively upon Brandt v. Eagle, 602 A.2d 

1364, to support their "one satisfaction" claim. Brandt belongs to a line 

of Pennsylvania cases standing for the proposition that where a plaintiff 

obtains a judgment and the "judgment is marked satisfied . . . 

[Pennsylvania] law presumes that full satisfaction for the harm incurred 

has been received." Id. at 1367; see Hilbert v. Roth, 149 A.2d 648 (Pa. 

1959) ("[W]hen the plaintiff has [a judgment] marked satisfied of record, 

the common law assumption that he is satisfied may reasonably be 

permitted to operate."); Frank, 522 F.2d at 326. Courts have construed 

this conclusive presumption narrowly applying it only to cases where 

there has been a "judgment entered as satisfied" on the docket. See 

Blanchard, 188 A.2d at 725 (noting that Hilbert "must be limited to its 

own factual situation"). As the District Court correctly noted, however, 

"this is not a case where a judgment was adjudicated let alone satisfied." 

Accordingly, we find appellants' reliance upon this line of cases 

misplaced. 

 7 
2. Issue Preclusion 

Under Pennsylvania law, issue preclusion applies where: 

 (1) the issue decided in the prior adjudication wa s 

 identical with the one presented in the later action; 

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

 (3) the party against whom the plea is asserted wa s a 

 party or in privity with a party to the prior 

 adjudication; and 

 (4) the party against whom it is asserted has had a full 

 and fair opportunity to litigate the issue in question in 

 a prior action. 

Dici v. Commonwealth of Pa., 91 F.3d 542, 548 (3d Cir. 

1996)(citing Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996), 

and Safeguard Mut. Ins. Co. v. Williams, 345 A.2d 664, 668 

(Pa. 1975)). The parties agree that this is the correct 

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 "final 

judgments" for purposes of issue preclusion. See Shaffer, 

673 A.2d at 875. Section 13 provides: 

 The rules of res judicata are applicable only when a 

 final judgment is rendered. However, for purposes of 

 issue preclusion (as distinguished from merger and 

 bar), "final judgment" includes any prior adjudication 

 of an issue in another action that is determined to be 

 sufficiently firm to be accorded preclusive effect. 

Restatement (Second) of Judgments S 13 (1982). The 

comments to section 13 emphasize that issue preclusion is 

applicable when it is determined "that the decision to be 

carried over was adequately deliberated and firm, even if 

not final in the sense of forming the basis for a judgment 

already entered." Id. S 13 cmt. g. 

 [To require that] a final judgment in the strict sense 

 has been reached in the first action can involve 

 8 
 hardship--either needless duplication of effort and 

 expense in the second action to decide the same 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 completefinish. 

 In particular circumstances the wisest course is to 

 regard the prior decision of the issue as final for the 

 purpose of issue preclusion without awaiting the end 

 judgment. 

Id. Accordingly, the Restatement recognizes that the finality 

inquiry focuses upon "whether the conclusion in question is 

procedurally definite." Id. Section 13's comments provide a 

number of factors to be considered in this regard: 

 (1) whether the prior decision was "adequately 

 deliberated and firm" and not "avowedly tentative"; 

 (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 subject to 

 appeal or was in fact reviewed on appeal. 

Id. One of section 13's illustrations provides an example 

particularly instructive in this appeal: 

 In a jurisdiction that permits "split" trials (a trial of 

 liability followed, if liability is found, by a separate trial 

 to ascertain the damages), the jury in a negligence case 

 finds for the plaintiff A as to liability, the defendant B 

 having denied his own negligence and pleaded

 contributory negligence on the part of A. Under 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 reached 

 later, when, in the second phase of the trial, another 

 jury assessed the damages. But prior to the second 

 phase, the jury's verdict as to liability may be held 

 conclusive as to the issues of A's and B's negligence in 

 any other action between them in which the same 

 issues appear. 

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

 9 
We conclude that Greenleaf's prior state court jury

verdict on damages is a "final judgment" under section 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 favors a 

finding of sufficient finality in circumstances like those 

before us. The parties were "fully heard" on the issue of 

damages and the jury's verdict was "adequately deliberated 

and firm." The jury's decision would have been appealable 

following Phase II, had no settlement occurred. Pursuant to 

the settlement, the Greenleafs voluntarily surrendered their 

right to further review, and the dismissal order entered 

pursuant to that settlement assured that the assessment of 

damages was "procedurally definite" and not subject to 

change. Under these circumstances, we perceive no 

justification for permitting the Greenleafs to relitigate the 

amount of their damages.5 

The District Court concluded that the state jury's 

damages verdict did not preclude relitigation of the 

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 542 (3d 

Cir. 1996), for the proposition that settlement following a 

reverse bifurcation verdict on damages is not an 

adjudication. Dici does not stand for that proposition, 

_________________________________________________________________ 

4. Greenleaf attempts to distinguish this illustration by arguing that it, 

like the comments to section 13 generally, deals with a "same party" 

situation and neither Owens nor Garlock were parties to the state 

proceedings. While it is true that the comments and illustrations deal 

predominantly with "same party" situations, issue preclusion 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 with the modern trend to 

"relax[ ] traditional views of the finality requirement by applying issue 

preclusion to matters resolved by preliminary rulings 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.). 

 10 
however. In Dici this court considered whether the factual 

findings of a state workmen's compensation referee had 

preclusive effect in a subsequent federal court action for 

violations of Title VII and state antidiscrimination statutes. 

Id. at 545-47. The case involved neither a reverse bifurcated 

proceeding, nor a jury verdict, nor a settlement. Id. Instead, 

we determined that issue preclusion did not apply because 

the issues presented in the two proceedings were not 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 appealability is 

only a factor for determining the appropriateness of issue 

preclusion, the Court relied upon section 28(1) of the 

Restatement (Second) of Judgments for the proposition 

that issue preclusion did not apply because Greenleaf 

"could not, as a matter of law, have obtained review of the 

preliminary verdict." We find the District Court's reliance 

upon the preliminary verdict's appealability misplaced. 

Section 28 establishes various exceptions to the doctrine 

of issue preclusion. It provides in relevant part: 

 Although an issue is actually litigated and determined 

 by a valid and final judgment, and the determination is 

 essential to the judgment, relitigation of the issue in a 

 subsequent action between the parties is not precluded 

 in the following circumstances. 

 (1) The party against whom preclusion is sought 

 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 as a 

matter of law" where "the controversy has become moot, or 

because the law does not allow review of the particular 

category of judgments." Id. S 28 cmt. a. The comments 

further provide that the exception does not apply where 

"review is available but not sought." Id. 

While the Pennsylvania Supreme Court has adopted 

section 28, Clark v. Troutman, 502 A.2d 137 (Pa. 1985), it 

has not specifically addressed the scope of the section 28(1) 

 11 
exception. This court, however, has addressed similar 

issues regarding the significance of appealability for 

purposes of issue preclusion under the Restatement. Our 

decisions hold that decisions not final for purposes of 

appealability may nevertheless be sufficientlyfinal to have 

issue preclusive effect. For example, in In re Brown, 951 

F.2d 564, 569-70 (3d Cir. 1991), we concluded that a state 

court's partial summary judgment establishing a debtor's 

liability in a mortgage foreclosure action was sufficiently 

final to have issue preclusive effect in a subsequent 

bankruptcy proceeding, even though the judgment was not 

final for purposes of appealability because the amount due 

on the mortgage remained to be determined in state court. 

We explained: 

 Unlike claim preclusion, the effectiveness of issue 

 preclusion, sometimes called collateral estoppel, does 

 not require the entry of a judgment, final in the sense 

 of being appealable. . . . `Finality for purposes of issue 

 preclusion is a more `pliant' concept than it would be 

 in other contexts.' Finality `may mean little more than 

 that the litigation of a particular issue has reached 

 such a stage that a court sees no really good 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 preclusion 

was justified observing that (i) the party against whom 

issue preclusion was asserted was represented by counsel 

in the prior state action, (ii) hearings were held in state 

court, (iii) the trial court's summary judgment order 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 sufficiently 

final to justify issue preclusion in a subsequent action even 

though it was not immediately appealable as a matter 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 judgment was 

not "tentative." See id. These elements are also satisfied in 

this case. In the prior state action (i) Greenleaf was 

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

genuinely contested in a jury trial, (iii) the verdict was not 

tentative, and (iv) allowing damages to be relitigated in 

federal court clearly wasted judicial resources. 

We do not attempt to fully chart section 28(1)'s scope in 

this case. We simply hold that reading section 13 and 

section 28(1) together, we find that the lack of immediate 

appealability of Greenleaf's preliminary state damages 

verdict does not operate to prevent its issue preclusive 

effect in this case. Appellate review would have been 

available had the Greenleafs not chosen to settle. 6 Allowing 

Greenleaf to relitigate damages in federal court was 

unnecessarily duplicative and a waste of valuable judicial 

resources -- the precise evils that issue preclusion is 

designed to combat. See Shaffer, 673 A.2d at 875 ("[Issue 

preclusion] relieve[s] parties of the cost and vexation of 

_________________________________________________________________ 

6. While we find it unnecessary to define section 28(1)'s scope to resolve 

this case, we observe that courts typically apply it to the narrow set of 

judgments where a party has no right to appeal at any 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 finality has created the 

opportunity to rest preclusion on a decision that cannot be appealed at 

present but may be appealed and reversed in the future."). For example, 

some courts have applied section 28(1) to "[a] District 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, 1323 (Ariz. Ct. App. 

1991). Similarly, other courts have applied section 28(1) to allow a party 

who generally prevailed in a prior judgment, but lost on certain issues, 

to relitigate the issues upon which they were unsuccessful because the 

party was " `not aggrieved and could not appeal the judgment [as a 

matter of law].' " See, e.g., Lombardi v. City of El Cajon, 117 F.3d 1117, 

1122 (9th Cir. 1997) (quoting Anderson-Cottonwood Disposal Serv. v. 

W.C.A.B., 135 Cal.App.3d 326, 332, 185 Cal.Rptr. 336, 340 (1982)); In re 

DES Litig., 7 F.3d 20, 24 (2d Cir. 1993) see also Hernandez v. Region 

Nine Housing Corp., 684 A.2d 1385, 1393 (N.J. 1996)(section 28(1) 

prevented issue preclusion of EEOC's adverse decision on Title VII claim 

because no appellate review of EEOC decision exists). The Greenleafs' 

preliminary verdict does not fall into this category of cases. 

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

preventing inconsistent decisions encourage[s] reliance on 

adjudication."). 

B. Adequacy of the Jury Instructions 

Appellants assert that the District Court's jury 

instructions inadequately informed the jurors regarding 

Pennsylvania law on asbestos related injuries. Our 

standard of review over this issue is mixed. We exercise 

plenary review to determine whether the District Court's 

jury instructions misstated Pennsylvania law. See Woodson 

v. Scott Paper Co., 109 F.3d 913, 929 (3d Cir. 1997). In the 

absence of a misstatement, however, we review the District 

Court's decisions regarding jury instructions for abuse of 

discretion. See Bhaya v. Westinghouse Elec. Corp., 922 F.2d 

184, 191 (3d Cir. 1990) ("Unless a trial judge misstates the 

law, the judge's rulings on points for charge may be 

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 specifically 

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 not 

submitting its proposed "de minimis" exposure defense to 

the jury. 

The District Court's instruction in this case charged the 

jury: 

 . . . [F]ocus on the asbestos products manufactured 

 and distributed by each particular defendant. . . .[If] 

 the product in [sic] particular of a defendant was 

 defective in the sense that it lacked an adequate 

 warning, the defendant is liable if that condition 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 

 14 
 or fanciful factor having no connection or only an 

 insignificant connection with the injury. There may be 

 more than one substantial factor in bringing about the 

 harm suffered by the plaintiff. . . . What this means in 

 this case is that for a defendant to be liable, plaintiffs 

 must show by a fair preponderance of the evidence that 

 Charles Greenleaf was exposed to that defendant's 

 product and that such exposure was a substantial 

 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 cause and 

explained that concept to them. It further cautioned that 

the jury must conduct a separate analysis of the evidence, 

and make a separate decision on, the proximate cause 

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 asbestos 

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 Superior 

Court in Eckenrod v. GAF Corp., 544 A.2d 50, 53 (Pa. 

Super. Ct. 1988), held that any charge in an asbestos case 

is deficient if it fails specifically to require evidence of "the 

frequency of the use of the product and the regularity of 

plaintiff's employment is proximity thereto." 

In Eckenrod, the Pennsylvania Superior Court affirmed a 

grant of summary judgment in favor of various asbestos 

manufacturers because the plaintiff had failed to provide 

sufficient evidence of the decedent's exposure to the 

defendants' products. The Court summarized the principles 

governing liability in an asbestos action: 

 In order for liability to attach in a products liability 

 action, the plaintiff must establish that the injuries 

 were caused by a product of the particular 

 manufacturer or supplier. Additionally, in order for a 

 plaintiff to defeat a motion for summary judgment a 

 plaintiff must present evidence to show that he inhaled 

 asbestos fibers shed by the specific manufacturer's 

 15 
 product. Therefore, a plaintiff must establish more 

 than the presence of asbestos in the workplace; he 

 must prove that he worked in the vicinity of the 

 products use. Summary judgment is proper when the 

 plaintiff has failed to establish that the defendant's 

 products were the cause of plaintiff's injury. 

 * * * 

 We acknowledge that the facts establish that the 

 decedent on occasion was exposed to asbestos; there is 

 no evidence, however, as to the regularity or nature of 

 decedent's contact with asbestos. Moreover, there is no 

 testimony establishing that Mr. Eckenrod worked with 

 asbestos supplied and/or manufactured by Porter or A- 

 Best or any of the other appellees. The mere fact that 

 appellees' asbestos products came into the facility does 

 not show that the decedent ever breathed these specific 

 asbestos products or that he worked where these 

 asbestos products were delivered. 

Id. at 53. 

We do not read Eckenrod as establishing any additional 

or special requirements for jury instructions in asbestos 

cases. Rather, we read it as a straightforward application of 

traditional principles of summary judgment and proximate 

cause law to a factual pattern, various permutations of 

which arise frequently in asbestos cases. 

Accordingly, it is not surprising to us to find postEckenrod opinions in which the Superior Court has 

sustained jury verdicts where the court's discussions did 

not contain the "frequency, regularity and proximity" test 

appellants urge as essential.7See, e.g., Juliano v. Johns- 

_________________________________________________________________ 

7. We find further support for our conclusion in Jobe v. W.P. Metz 

Refining, 664 A.2d 1015 (Pa. Super. Ct. 1995), where the Superior Court 

extended the Eckenrod principles of asbestos liability to product 

liability 

cases involving cadmium, another carcinogenic substance. The court 

discerned from the "Eckonrod line of cases" that an asbestos plaintiff 

must prove three elements: (i) that the employee/decedent was at a 

particular work site, (ii) that the employee/decedent was exposed to 

carcinogenic-containing products at that site, and (iii) that a 

defendant's 

carcinogenic-containing products was [sic] at the that particular work 

site at or about the same time as the employee/decedent. Id. at 1019. 

Notably absent from the court's summary of asbestos liability law was 

the Eckenrod "frequency, regularity and proximity" formula. 
 16 
Manville Corp., 611 A.2d 238, 239 (Pa. Super. Ct. 1992); 

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-Manville Corp., 

596 A.2d 203, particularly instructive because it involved 

facts strikingly similar to this appeal. There, as here, the 

Superior Court, considered a challenge to the adequacy of 

jury instructions in an appeal from a judgment in favor 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 harm" and 

that: 

 plaintiff must present evidence which establishes that 

 he inhaled asbestos fibers which came from the 

 manufacture's [sic] product. It is not enough simply to 

 show that the product was delivered to the work 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 several 

 substantial factors. There are no requirements [sic] 

 there be a single substantial factor. As long as youfind 

 that there is a real factor that's not something fanciful 

 or something imaginary, but something that came 

 about because of what happened. 

Id. The Superior Court concluded that this"jury charge 

adequately comports with the mandate of Eckenrod and 

that the trial court was not required to provide any more 

precise explanation than that actually given." Id. at 210. 

While relying heavily upon Eckenrod the court did not 

invoke a "frequency, regularity and proximity" test. See id. 

at 209. 

In the absence of a misstatement, we review the District 

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 proximity" 

instructions.8 

_________________________________________________________________ 

8. We find no merit in appellants' claim that the District Court's Phase 

II verdict form was patently insufficient and oversimplified. Appellants 

submitted proposed verdict forms to the court, each posing three distinct 

 17 
We similarly find Garlock's assertion that the District 

Court misstated Pennsylvania law by omitting Garlock's 

proposed "de minimis" exposure defense from the jury 

instruction unpersuasive. Again, we take guidance from 

Lilley where the Superior Court rejected a virtually identical 

argument stating that it was "unaware of any requirement 

of Pennsylvania law that the jury charge must include an 

instruction on de minimis exposure." Id. at 210. We have 

similarly found no such requirement, and conclude that the 

District Court did not err by refusing this instruction. 

C. Attorney Misconduct 

Appellants next contend that a new trial is required 

because allegedly inflammatory statements made by 

Greenleaf 's counsel in closing arguments prejudiced the 

jury. We review District Court decisions whether to grant a 

new trial because of alleged attorney misconduct for abuse 

of discretion. Blanche Road Corp. v. Bensalem Township, 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 discretion 

because he [or she] is in a far better position than we to 

appraise the effect of the improper argument of counsel.' " 

Fineman, 980 F.2d at 207 (quoting Reed v. Philadelphia 

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 misconduct. 

First, they argue that Greenleaf 's counsel suggested that 

_________________________________________________________________ 

questions. The District Court, however, fashioned its own form, which 

presented one question: "Are the following defendants liable?" A list of 

the defendants followed the question. As we have concluded above, the 

court's jury instructions adequately covered the substantive law's 

requirements regarding liability. They were relatively straightforward and 

it was not an abuse of discretion for the District Court to refuse to 

repeat them in the verdict form. 

 18 
Greenleaf would not recover anything unless the jury 

returned a verdict against the defendants. This was

allegedly improper and prejudicial because Greenleaf had 

already received compensation for their injuries in the state 

settlement. Second, Garlock contends that counsel 

distracted the jury's attention from the relevant issues 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 verdict for 

plaintiffs would "send a message to the folks at Owens."9 

These comments do not approach the level of attorney 

misconduct found to prejudice the jury in our precedents. 

See, e.g., Blanche Road, 57 F.3d at 264; Fineman, 980 F.2d 

at 207-10; Draper, 580 F.2d at 95. We conclude that it is 

not reasonably probable that the verdict was prejudicially 

influenced by Greenleaf 's counsel's remarks, and we find 

no abuse of discretion in the District Court's denial 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 that the 

evidence does not support a finding that it is liable for 

_________________________________________________________________ 

9. Owens Corning cites Foster v. Crawford Shipping Co., Ltd., 496 F.2d 

788, 792 (3d Cir. 1974), for the proposition that inviting the jury to 

"send a message" is by itself outrageous enough to warrant a new trial, 

particularly in a strict liability case where conduct is not at issue. We 

find Foster unhelpful. Foster did not erect a per se rule against 

invitations to a jury to "send a message", nor did it involve products 

liability. In Foster, we granted a new trial because 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 upon 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 disparity and none of 

the remaining Foster factors are present in this case. Accordingly, we 

find Owens Corning's argument unavailing. 

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

verdict absolving the non-appearing defendants is against 

the overwhelming weight of the evidence. The Greenleafs 

respond that appellants are precluded from asserting 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 motion for 

judgment as a matter of law at the end of the evidence is 

not thereafter entitled to have judgment entered in its favor 

notwithstanding an adverse verdict on the ground that 

there is insufficient evidence to support the verdict. See 

Lowenstein v. Pepsi-Cola Bottling Co., 536 F.2d 9, 11 (3d 

Cir. 1976). However, "the failure to move for a directed 

verdict at the close of all evidence does more than limit an 

aggrieved party's remedy to a new trial. In this Circuit, it 

wholly waives the right to mount any post-trial attack on 

the sufficiency of the evidence." Yohannon, 924 F.2d at 

1262; see also Stadtlander Drug Co., Inc. v. Brock Control 

Sys. Inc., 174 F.R.D. 637, 641 (W.D. Pa. 1997)(refusing 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 jury retired 

to deliberate). The record does not indicate that Garlock 

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 Defendants 

Appellants also claim that the jury's verdict is against the 

clear weight of the evidence to the extent it absolved the 

non-appearing defendants of liability. They ask for a new 

_________________________________________________________________ 

10. Garlock claims that its proposed jury instruction number one was a 

request for judgment as a matter of law. The instruction cannot be so 

construed. 

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

favor on their cross-claims against the non-appearing 

defendants. We disagree with Greenleaf 's suggestion 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 against 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 upon 

such a motion when a party is arguing that the evidence is 

insufficient to support a verdict against it, and it 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 evidence, and 

Yohannon takes the position that a failure to advance it at 

that time waives the right to a new trial based on 

insufficiency of the evidence. 

The appellants here are not arguing insufficiency of 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 state of the 

record entitles them to judgment, i.e., that evidence the 

jury was not at liberty to reject dictated a judgment in their 

favor.11 Rather, they take the position that the court, 

utilizing its authority under Rule 59(a), should critically 

evaluate the evidence and exercise its discretion in 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 50 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 witness or 

_________________________________________________________________ 

11. A litigant with the burden of persuasion is entitled 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 evidence the trier of fact is 

not at liberty to disbelieve and no inference contrary to its position can 

be drawn from the undisputable facts. Wright & Miller, S 2535, at 328- 

29. 

 21 
the weight of the evidence and must draw all inferences in 

favor of the party against whom the motion is made). 

We conclude that Yohannon was not intended to foreclose 

the grant of a new trial to parties in appellants' position. 

Given the state of the record at the close of the evidence 

they had every reason to expect that the jury, if it 

understood and rationally applied the court's instructions, 

would decide that they had carried their burden of 

persuasion. Moreover, they were not in a position to argue 

that evidence which the jury was not entitled to reject 

required it to infer that the exposure to each of the 

products of the non-appearing defendants was a 

substantial factor in causing Greenleaf's mesothelioma. 

Under these circumstances appellees did not waive their 

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 review is 

appropriate when considering whether a verdict is against 

the weight of the evidence "because the district court 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 weight 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 overturned 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-Illinois, 

Uniroyal, Fireboard, and Hopeman Brothers, did not appear 

at trial to defend against Greenleaf's claims and appellants' 

counterclaims. The following uncontested evidence was 

presented against them at trial. In his video taped

deposition Mr. Greenleaf described his occupational

exposure to asbestos products. He worked as a shipfitter at 

Sun Ship for seven and one half years beginning in 1942. 

He did not personally handle asbestos materials, but he 

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

the time" from asbestos containing pipe covering, mud, 

cloth and paneling being used above him. He estimated 

that he was exposed to asbestos products 90% of his time 

at Sun Ship and specifically identified (i) Johns-Manville 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 months 

as a shipfitter and experienced similar exposure to the 

same products for four of those months. This evidence thus 

establishes that Greenleaf was exposed to Johns-Manville 

and Hopeman Bros. asbestos for almost eight years. 

In 1953, Mr. Greenleaf began working at Westinghouse 

as a fabricator. He worked there, mainly building turbines, 

for more than 30 years until he retired in 1986. Greenleaf 

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 there next to 

 you and like I say with the air--there was no air 

 conditioning or nothing. If you need any air, you 

 opened an air hose someplace [sic] to give you 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 from 

block cutting permeated the air, stating that "everything 

you went to get against, got against your clothes because 

nobody went around cleaning these things up, you know. It 

was all--it was on everything." (JA 481). Mr. Greenleaf also 

noted that when the asbestos dust mixture was combined 

with water to create asbestos mud "[the dust] went right up 

to the air." (JA 482). When asked which manufacturers' 

asbestos products were used at Westinghouse he identified, 

among others, Johns-Manville and Owens-Illinois. 

Additionally, in another deposition Greenleaf was asked 

whether he was exposed to one manufacturer's product 

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

responded: 

 A: I would say Johns-Manville might have been the 

 most popular, you know, the most used. 

 Q: Can you give us a percentage versus the other 

 ones? 

 A: I would say offhand maybe 50% would be that 

 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 over 

almost 30 years working with Greenleaf at Westinghouse, 

provided additional evidence regarding Greenleaf's 

exposure. He testified that he and Mr. Greenleaf frequently 

used asbestos cloth manufactured by, among others, 

Johns-Manville, Uniroyal, and Fireboard, and that the cloth 

disintegrated from the heat and emitted asbestos dust. He 

also testified that Mr. Greenleaf worked with Uniroyal 

gaskets. Thus, Cyrus's and Greenleaf's testimony 

established that Greenleaf had been exposed to Uniroyal, 

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 them, the 

non-appearing defendants admitted to selling or using 

asbestos products. Finally, Greenleaf's expert witness 

testified, with a reasonable degree of medical certainty, that 

Greenleaf's exposure to asbestos in the workplace from 

1942 to 1976 was "the kind of exposure that would have 

led to the development of mesothelioma." (JA 237). 

The District Court instructed the jury that it mustfind 

essentially three elements to hold a defendant liable for 

Greenleaf's injuries. The jury had to determine that (i) a 

defendant's asbestos product was defective because it 

lacked a warning, (ii) Greenleaf was exposed to that 

defendant's product, and (iii) exposure to the product was 

a substantial factor in causing Greenleaf's mesothelioma. 

 24 
The uncontested evidence satisfied each element with 

respect to each of the non-appearing defendants. First, the 

non-appearing defendants admitted to producing or using 

asbestos products in their interrogatory answers, and 

Greenleaf's uncontested testimony established that he had 

never seen a warning on any of the defendants' products. 

Second, Greenleaf and Cyrus provided undisputed 

testimony that he was exposed to each defendant's asbestos 

products: (i) Johns-Manville for approximately 38 years, (ii) 

Fireboard, Uniroyal and Owens-Illinois for 30 years, and 

(iii) Hopeman Bros. for approximately 8 years. Finally, 

Greenleaf's expert testified that Greenleaf's exposure to 

these products was the kind of exposure that caused

mesothelioma. 

While the jury was not required to credit all of this 

uncontroverted evidence, and while it was not required 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 Garlock and 

Owens. The jury found Garlock and Owens liable on the 

basis of virtually identical evidence and in the face of a 

rigorous defense. Particularly puzzling is the jury's finding 

that Johns-Manville was not liable when the evidence 

established that Greenleaf's exposure to Manville products 

far exceeded his exposure to either Garlock or Owens 

products. 

Given the evidence that the jury must have credited in 

returning the verdicts against Garlock and Owens, we can 

find no rational explanation for the jury's failure to find the 

non-appearing defendants liable as well. It may well 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-appearing 

defendants, we are left with the definite andfirm conviction 

that a mistake has been made and that a new trial on the 

cross-claims is necessary to prevent a miscarriage of 

justice. 

III. Conclusion 

We will reverse the judgment of the District Court and 

 25 
remand for further proceedings consistent with this

opinion. On remand, the District Court will enter a

judgment in the Greenleafs' favor against Garlock and 

Owens in an amount consistent with the amount of 

damages awarded them in state court.12 It will conduct a 

new trial on the crossclaims of Garlock and Owens against 

the non-appearing defendants. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

12. We note that the District Court's September 2, 1997 order granted 

Greenleaf 's request for delay damages under Pennsylvania law. The 

District Court's award of $135,433.22 in delay damages was calculated 

based upon the federal jury's damages assessment. Because we conclude 

that issue preclusion prevented relitigation of damages, the District 

Court will have to recalculate delay damages on remand. 

 26