1 Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). United States Court of Appeals,

Fifth Circuit.

No. 91-6149.

George W. WATKINS, et al., Plaintiffs,

v.

FIBREBOARD CORPORATION, et al., Defendants.

Lloyd G. BRANNEN, et al., Plaintiffs-Appellees,

v.

FIBREBOARD CORPORATION, et al., Defendants,

Pittsburgh Corning Corporation, Defendant-Appellant.

Isaac PRICE, Jr., et al., Plaintiffs-Appellees,

v.

FIBREBOARD CORPORATION, et al., Defendants,

Pittsburgh Corning Corporation, Defendant-Appellant.

Harold BARRON, et al., Plaintiffs-Appellees,

v.

FIBREBOARD CORPORATION, et al., Defendants,

Pittsburgh Corning Corporation, Defendant-Appellant.

July 1, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, WISDOM, and WIENER, Circuit Judges.

WISDOM, Circuit Judge:

This is an unusual case but not one that causes the court to break new ground. We are

Erie -bound—the substantive law of Texas prevails. 1 This Court has spoken earlier on the basic issue:

Is there recovery under the law of Texas for mental anguish as part of the injury produced by

exposure to asbestos products of plaint iffs who may not have, or probably will not have, asbestosis2 765 F.2d 456 (5th Cir.1985).

3 Pittsburgh-Corning Corp., Owens-Corning Fiberglas Corporation, Fibreboard Corporation,

GAF Corporation, Owens-Illinois, Inc. or cancer? D artez v. Fibreboard Corporation. 2 The jury 's answers to int

errogat ories were not

necessarily inconsistent. In this respect, Rule 49 of the Federal Rules of Civil Procedure is helpful.

In the very restricted circumstances of this case we hold that the trial judge and the jury did not

commit reversible error.

I.

The plaint iffs, George Watkins, Lloyd Brannen, Isaac Price, Jr., and Harold Barron, workers

exposed for many years to asbestos-containing products, separately filed suit against certain asbestos

companies. 3 In answer to special interrogatories the jury found that the plaintiffs had been exposed

t o t he defendants' asbestos products but that the exposure had not been a producing cause of any

a sbestos-related disease. The jury found, however, that as a result of the exposure each of the

plaint iffs had suffered "pain, mental anguish, and loss of capacity for enjoyment of life in the future"

(collectively, "mental anguish"). The defendants moved for a judgment in their favor based on the

jury's finding that the plaint iffs f ailed t o show that the exposure to asbestos had been a producing

cause of any d isease. The trial judge denied the motion and awarded damages to the plaintiffs as

determined by the jury. Only Pittsburgh-Corning appealed.

II.

Shortly after plaint iffs filed suit, the district court consolidated the actions and bifurcated the

trial. In July 1987 a jury found that the defendants' products were defective and unreasonably

dangerous. The second trial was to determine the effect of the exposure, particularly in t erms of

damages.

In the second trial, the plaint iffs produced evidence of pleural and parenchymal abnormalities,

p ain, and mental anguish. The defendants' experts minimized the extent of the pleural thickening,

discussed the probability that other causes than exposure to asbestos produced the pleural changes,

and stated that cancer would "probably not" result in any of the cases.4 4.

INTERROGATORY NO. 1-A

Do you find from a preponderance of the evidence that the plaintiff, George

Watkins, was exposed to any asbestos containing product manufactured or sold by any of

the following companies?

Answer "Yes" or "No" as to each company:

FIBREBOARD CORPORATION:

_______________________________________________

GAF CORPORATION:

______________________________________________________

OWENS-CORNING FIBERGLAS CORPORATION:

__________________________________

OWENS-ILLINOIS, INC.:

_________________________________________________

PITTSBURGH CORNING CORPORATION:

_______________________________________

If you have answered Interrogatory No. 1-A "Yes" as to any defendant, then

answer Interrogatory No. 1-B as to each such defendant.

INTERROGATORY NO. 1-B

Do you find from a preponderance of the evidence that the exposure of plaintiff,

George Watkins, to the asbestos containing products found by you in answer to

Interrogatory No. 1-A was a producing cause of any asbestos related disease?

Answer "Yes" or "No" as to each defendant:

FIBREBOARD CORPORATION:

_______________________________________________

GAF CORPORATION:

______________________________________________________

OWENS-CORNING FIBERGLAS CORPORATION:

__________________________________

OWENS-ILLINOIS, INC.:

_________________________________________________ After five days of trial, the district judge instructed the jury. In these instructions he included

five special interrogatories which are contained here in the margin. 4 The interrogatori es werePITTSBURGH CORNING CORPORATION:

_______________________________________

If you have answered Interrogatory No. 1-B "Yes" as to any defendant, then

answer Interrogatory No. 1-C.

INTERROGATORY NO. 1-C

What percentage of George Watkins' asbestos related disease, if any, do you find

from a preponderance of the evidence to have been caused by the products of the below

listed defendants.

Answer by stating the percentage for any of the below listed defendants as to

which you answered "Yes" for in Interrogatory No. 1-B, as to the defendants. The

percentage you find must total 100 percent.

FIBREBOARD CORPORATION: ______%

GAF CORPORATION: ______%

OWENS-CORNING FIBERGLAS CORPORATION: ______%

OWENS-ILLINOIS, INC.: ______%

PITTSBURGH CORNING CORPORATION: ______%

TOTAL 100%

INTERROGATORY NO. 1-D

What sum of money, if paid now in cash, do you find from a preponderance of the

evidence would fairly and reasonably compensate George Watkins for his injuries resulting

from exposure to asbestos containing products?

Answer separately in dollars and cents, if any, with respect to the following

elements:

a. Pain, mental anguish, and loss of capacity for enjoyment of life in the past:

Answer: $________

b. Pain, mental anguish, and loss of capacity for enjoyment of life in the future:

Answer: $________

c. Future medical expenses:

Answer: $________

d. Loss of earning capacity in the past:Answer: $________

e. Loss of earning capacity in the future:

Answer: $________

INTERROGATORY NO. 1-E

Find from a preponderance of the evidence what sum of money, if paid now in

cash, would fairly and reasonably compensate Ada Watkins for her loss of consortium and

services, if any, resulting from her husband's asbestos related disease.

Consider the following elements of damage, if any, and none other:

a. Loss of consortium in the past.

b. Loss of consortium that, in reasonable probability, will be sustained in the

future.

c. Loss of George Watkins' household services in the past.

d. Loss of George Watkins' capacity to perform household services that, in

reasonable probability, will be sustained in the future.

Answer in dollars and cents:

ANSWER: $________ identical in each case and the individual cases were identified as 1-A, 2-A, 3-A, and 4-A, starting with

Watkins as 1-A, and so on. The jury answered interrogatory 1-A by finding that the plaintiff was

exposed to asbestos. Having answered 1-A, the jury went on to 1-B, finding that the exposure was

not " a producing cause of any asbestos related disease" (emphasis added). 1-B instructs the jury to

answer 1-C if it has answered "Yes" as to any defendant. The jury disobeyed the trial judge by

proceeding to 1-C, apportioning among the five defendants the percentage of the plaint iffs' asbestos

related disease "caused" by the defendants' products. Interrogatory 1-D asked the jury to find what

sum would compensate the plaint iff "for his injuries resulting from exposure to asbestos" (emphasis

added). The interrogatory listed as two categories of "injuries": "(a) Pain, mental anguish, and loss

of capacity for enjoyment of life in the past" and (b) "... for the future". The jury realized that either

their answers to B and C were contradi ctory and that B and D also were contradictory or that the

term "injuries" was broader than the term "disease".5

Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364, 82 S.Ct. 780,

786, 7 L.Ed.2d 798 (1962).

6 White v. Grinfas, 809 F.2d 1157, 1161 (5th Cir.1987) (internal citation omitted). Accordingly, "Jury Note One" inqui red of the court: "If we say no to Questi on 1-B (no

disease) may we award damages based purely on exposure, or must we agree that disease is present

today?" The trial judge informed the jury in writing: "Answer 1-B and D independently". Before

he sent this response to the jury, the trial judge asked counsel, "Do any of the attorney s have any

objections to the court sending this response to the jury?" Counsel replied: "Plaintiff doesn't" and,

from the other side, "None of the defendants do either, Your Honor". (Tr. 1058).

III.

Pittsburgh-Corning argues that the judgment should be set aside, because the jury answered

"No" to the question put by B as to "producing cause". Similarly, the answer to the D must be wrong

because without causation there can be no damages.

When a jury returns answers to interrogatories that seemingly conflict, the court must attempt

to reconcile the answers, if possible, to validate the jury's verdict. 5 "The touchstone in reconciling

apparent con flict is whether "the answers may fairly be said to represent a logical and probable

decision on the relevant issues as submitted.' " 6

The answers to interrogatories must be considered in the light of the trial judge's instructions.

Here the trial judge was careful to supply the necessary background for the questions and answers.

The trial judge stated:

one of the issues which you will be called upon to decide is whether exposure to any or all

of the companies' asbestos-containing prod u cts was a producing cause of disease in the

plaint iffs . In t his connection, the term "producing cause" means an efficient, exciting, or

contributing cause, which, in an actual and continuous sequence, produced the diseases o r damages complained of. This fact does not mean that the law recognizes only one producing

cause of a disease or damage, consisting of only one factor or thing or the conduct of only

one person. On the contrary, many fact o rs or things may operate at the same time, either

independently or together, to produce disease, injury or damage, and in such a case, each

exposure may be a producing cause. (emphasis added.) (Tr. 1035)

It is fa ir t o say t hat the jury assumed from this language that "disease" and "injury" are different.

They are different.Continuing and consistent with this interpretation, the trial judge then said:

In assessing the damages that would fairly and reasonably compensate each plaint iff, you shall

consider the physical pain, the mental anguish, the loss of capacity for enjoyment of life, and

the l oss of capacity to work that each plaint iff has sustained in the past, and which that

plaintiff will, in reasonable probability, sustain in the future

...

A plaint iff is entitled to recover compensation for mental anguish, proximately caused

by his asbestos exposure, even if such distress arises from fear of diseases that are a

substantial concern but not medically probable. The fact that the evidence may not establish

a reasonable medical probability that the plaint iff will develop an asbestos-related disease is

relevant to the jury's determination of the reasonableness of the anguish he feels and the

a mount of compensation to which he may be entitled. (emphasis added.) (Tr. 1037) ( See

infra note 25.)

We co nclude that a rational juror answering the interrogatories in the light of the law, as

stated by the trial judge, could find here that a plaint iff may recover compensation for mental anguish,

"proximately caused by his asbestos exposure, even if such distress arises from fear of diseases that

are a substantial concern but not medically probable". The medical probability that the plaintiff will

develop an asbestos-related disease bears on the "reasonab l eness of the anguish he feels and the

amount of compensation to which he may be entitled". That is the law in Texas. That is what the

jury undoubtedly understood when it found that t he plaint iffs were entitled to recover for mental

anguish , even t ho ugh a plaintiff did not have asbestosis and it was not medically probable that his

exposure would result in asbestosis.

Although it is logical that the jury distinguished "disease" from "injury", there is no causation

question with regard to the award of damages for injuries in Interrogatory D. The defendants'

attorneys, however, expressed themselves as satisfied, when the trial judge asked if there were any

objections to his statement that the jury should consider Interrogatories B and D independently.

When a basic issue is omitted in the instructions in this way and there is no objection, Rule

49 of the Fede ral Rules o f Civil Procedure comes to the aid of justice. In pertinent part the rule

provides:

If in so doing the court [in the instructions to the jury] omits any issue of fact raised by the

pleadings or by the evidence, each party waives the right t o a t rial by jury of the issue so

omitted unless before the jury retires the party demands its submission to the jury. As to an

issue omitted without such demand the court may make a finding; or, if it fails to do so, it

shall be deemed to have made a finding in accord with the judgment on the special verdict.

This Court has on many occasio ns resorted to rule 49 to validate a jury verdict. In O ld7 Wood v. Old Security Life Insurance Co., 643 F.2d 1209, 1215 (5th Cir.1981).

8 Fredonia Broadcasting Corp., Inc. v. RCA Corp., 481 F.2d 781, 796 (5th Cir.1973).

9 Smallw ood v. Pearl Brew ing Co., 489 F.2d 579, 606 (5th Cir.1974) cert. denied 419 U.S.

873, 95 S.Ct. 134, 42 L.Ed.2d 113 (1974).

10 J.C. Motor Lines, Inc. v. Trailw ays Bus System, 689 F.2d 599, 602-03 (5th Cir.1982).

11 Moore at ¶ 49.03[4]. Wright and Miller at § 2507.

12 Hodges v. Easton, 106 U.S. 408, 1 S.Ct. 307, 27 L.Ed. 169 (1882).

13 Stinson, Special Verdicts and Interrogatories, 7 Mo.L.Rev. 148 (1942). Security, 7 we stated that we would have found ca usat io n as an omitted issue if the trial judge had

simply granted judgment on the special verdict, which is precisely what occurred in the instant case.

In Fredonia, 8 we held that the intent element of fraud is "deemed" admitted although the jury made

no specific finding on this issue. In S mallw ood, 9 we approved a finding of culpability in a 10b-5

securities case, although once again the jury did not make a specific finding on culpability. In J.C.

Motor, 10 we inferred negligence although "no sp ecial issues on [a party's] individual negligence or

conduct were specifically submitted to the jury". These are but a few of the many cases in which we

have "deemed" admitted an element of a cause of action even though the jury did not spec ifically

answer an interrogatory concerning this element. As both Moore and Wright and Miller note, this

is imperative if a special verdict—one that uses interrogatories—rather than a general verdict is to

continue to be employ ed. 11 Otherwise there would always be the danger that the special verdict

would be set aside because the jury had failed to make a particular finding whereas a general verdict

could not be challenged on this grounds. Indeed, before the adoption of the Federal Rules, the United

States Supreme Court held that if the jury failed to make a finding on a material issue, the judgment

could not stand. 12 The Court set aside the special verdict and ordered a new trial. This result led one

observer to comment that, "Because of this hazard, the special verdict met with little use...." 13 With

the adopti on of the Federal Rules, this hazard was avoided. Causation is an omitted issue under Rule

49.

IV.14

Alley v. Charlotte Pipe & Foundry Co., 159 N.C. 327, 74 S.E. 885, 886 (1912).

15 Anderson v. Welding Testing Laboratory, Inc., 304 So.2d 351 (La.1974).

16 Carroll v. Sisters of St. Francis Health Services Inc., 61 U.S.L.W. 2291, 1992 WL 276717

(1992).

17 See cases listed in 6 ALR5th § 10 (1992).

18 1993 WL 141516, --- S.W.2d ---- (Tex. December 2, 1992).

19 St. Elizabeth Hospital v. Garrard, 730 S.W.2d 649 (Tex.1987).

20 Boyles v. Kerr. Early in this century, the North Carolina Supreme Court made the obvious observation that

the probability of developing cancer "must necessarily have a most depressing effect upon the injured

person. Like the sword of Damocles, he knows not when it will fall." 1 4 Since then the courts of the

several states have encountered several strands of cases dealing with the fear of contracting a disease.

A generation ago, courts considered fear of cancer from exposure to radiation. 15 Recent ly, the

Tennessee Court of Appeals held that a woman could recover for her reasonable fear of contracting

AIDS when she stuck her hand into a container which she thought contained paper towels but which

actually contained contaminated needles, even though she could not prove that she had been exposed

to the AIDS virus. 16 Over the last decade, the fear of contracting an asbestos related disease has

frequently been before the courts. 17

Although Pittsburgh-Corning argues that Texas does not permit recovery for future mental

anguish without a present asbestos related disease, its reliance on Boyles v. Kerr, 18 which overruled

in part St. Elizabeth Hospital 19 is misplaced. Pittsburgh-Corning is correct that Texas law does not

allow recovery for negligently inflicted emotional distress as an independent cause of action. 20 But

t he plaintiffs have never asserted that there was an independent right to recover for negligently

inflicted emotional distress or mental anguish. Moreover, this is a products liability case.

The plaint iffs should have made clear that they distinguished asbestosis or an asbestos-related

disease from an injury such as cancerphobia or mental anguish for which the exposure to asbestos

was the prod ucing cause. This is a basic issue in this case, articulated to some extent in the trial21 813 S.W.2d 658 (Tex.App.—Texarkana 1991, writ denied).

22 765 F.2d 456 (5th Cir.1985).

23 Pool at 675 n. 2.

24 Error granted (April 29, 1992), order withdrawn; error denied (Nov. 11, 1992), rehearing of

writ of error overruled (Dec. 9, 1992).

25 Dartez at 468. The judge read these exact words as part of the jury instructions, although he

substituted the words "A plaintiff" for "Under Texas law [Dartez]" (Tr. 1037). judge's general instructions, but not clearly articulated by eit her party, except perhaps by the

plaintiffs/appellees on appeal. Both the Texas Appellate Court in F ibreboard v. Pool 21 and this Court

interpreting Texas law in Dartez v. Fibreboard 22 have addressed this issue and stated that a plaint iff

may recover for mental anguish even if he does not currently suffer from an asbestos related disease.

In Fibreboard v. Pool, a Texas Court of Appeals found no error in an instruction that read

in part, "If you do not find that [the plaintif f] will in reasonable probability suffer a cancer or

mesothelioma, you may consider and compensate the plaint iff for any mental anguish he has suffered

or will suffer in the future from his reasonable fear, if any, of cancer and mesothelioma he might suffer

from his asbestos exposure, distinct from any fear of cancer which all persons might have." 23 The jury

need not find any current asbestos related disease and may believe that the plaint iff will never suffer

from an asbestos related disease, yet still award damages for the fear of one day suffering from an

asbestos related disease so long as that fear is reasonable in light of the nature of the exposure. The

Supreme Court of Texas granted a writ and heard oral argument, but dismissed the writ as

improvidently granted. 24

A few years before Pool, this Court arrived at the same conclusion reached by the Texas

courts, based on its analysis of Texas law. In D artez v. Fibreboard, this Court said: "Under Texas

law [the plaint iff] is entitled to compensation for mental anguish proximately caused by his asbestos

exposure, even if such distress aris es fro m fear of diseases that are a substantial concern, but not

medically probable. The fact that the evidence does not establish a reasonable medical probability that

Dartez will develop either disease is relevant to the jury's determination of the reasonableness of the

anguish he feels and the amount of compensation to which he is entitled." 2526 See e.g. Lavelle v. Ow ens-Corning Fiberglas Corp., 30 Ohio Misc.2d 11, 507 N.E.2d 476

(1987) (settled) and Ow ens v. Lac D'Amiante Du Quebec Ltee, 1987 WL 13327, 1987 US Dist

LEXIS 5961 (E.D.Pa).

27 See Christophersen v. Allied-Signal Corp., 939 F.2d 1106 (5th Cir.1991) (en banc) cert.

denied --- U.S. ----, 112 S.Ct. 1280, 117 L.Ed.2d 506 (1992).

28 Anderson at 353.

29 The jury did perhaps consider this as it assessed the lowest percentage of fault with regard to

Watkins (12.5%), the second lowest with regard to Brannen and Barron (15% in each case), and

the same percentage as the other defendants with regard to Price (20%). In most of t he cases that have permitted recovery, the plaintiffs had w orked as asbestos

insulators and pipefitters. 26 They had torn out asbest o s, installed asbestos; they had worked in

asbestos dust. They also had some evidence of pleural or parenchymal scarring.

In this case, the plaint iffs' and the defendants' experts disagreed as to the extent of any pleural

or parenchymal abnormalities. Subject to our expert testimony jurisprudence, 2 7 the jury which hears

these co nflict ing experts' opinions should decide whether the fear is reasonable. As our late

colleague, Judge Tate, wrote in a radiation burn case, "While to a scientist in his ivory tower the

possibility of cancerous growth may be so minimal as to be untroubling, we are not prepared to hold

that the trier of fact erred in finding compensable this real possibility to this worrying workman...." 28

The judgment in this case was consistent with Texas law and this Court's understanding of

Texas law as expressed in Dartez.

V.

There is no merit to the contention that Pittsburgh-Corning's product was not unreasonably

dangerous, because of the lack of friabilit y. At the first stage of this bifurcated trial, the jury decided

that the product was unreasonably dangerous. At the second stage Pittsburgh-Corning had ample

opportuni ty to present evidence that its product was not used or was incapable of being used in such

a way as to release asbestos fibers int o t he respirable air. Indeed, on direct examination all four

plaint iffs mentioned that Unibestos was different from t he ot her products. This the jury could

consider 29 in determining the reasonableness of the asbestos worker's fear of contracting asbestosis

and cancer as a result of being exposed to the alleged non-friable asbestos products of Pittsburgh-Corning.

* * *

We AFFIRM the judgment of the district court.