Com., Dept. of Gen. Serv. V. Min. Prod.

927 A.2d 717

COMMONWEALTH of Pennsylvania, DEPARTMENT OF GENERAL SERVICES, Pennsylvania Department of Transportation, Pennsylvania Public Utility Commission, Pennsylvania Emergency Management Agency, and Pennsylvania Department of State, Plaintiffs v. UNITED STATES MINERAL PRODUCTS COMPANY, Certainteed Corporation, Courtaulds Aerospace, Inc., Chemrex, Inc. Phillips Electronics North America Corporation, Advance Transformer Company, and Monsanto Company, Defendants Commonwealth of Pennsylvania, Department of General Services and Department of Transportation, Plaintiffs v. United States Mineral Products Company, Defendant.

No. 284 M.D. 1990.

No. 244 M.D. 1996.

Commonwealth Court of Pennsylvania.

Argued June 11, 2007.

Decided July 3, 2007.

Tybe A. Brett, Pittsburgh and Kenneth B. McClain, Independence, MO, for plaintiffs.

Thomas M. Goutman, Philadelphia, for defendants.

BEFORE: SMITH-RIBNER, Judge, and SIMPSON, Judge, and McCLOSKEY, Senior Judge.

OPINION BY Judge SIMPSON.

Was Monsanto Company's (Defendant) product, polychlorinated biphenyls (PCBs) defective, that is, unsafe for its intended use? After a five-week re-trial in this Court's original jurisdiction, a jury impaneled from Northampton County answered this interrogatory in the negative, thereby absolving Defendant from liability for alleged PCB contamination of the former Transportation and Safety Building (Building) in the Capitol Complex in Harrisburg, Pennsylvania.

Plaintiffs¹ filed the instant post-trial motions seeking judgment notwithstanding the verdict (JNOV) on the issue of product defect or, alternatively, a new trial, primarily alleging the jury's verdict is against the weight of the evidence. In addition, Plaintiffs contend the Court committed legal error in two evidentiary rulings and by limiting voir dire. As a final challenge, Plaintiffs allege juror misconduct and non-disclosure entitling them to a new trial. For the following reasons, we deny Plaintiffs' post-trial motions and enter judgment for Defendant.

I. History

A. Factual History

Defendant manufactured and sold PCBs² to other manufacturers for use in their products. When used as a plasticizer in other products, PCBs increased a product's durability, flexibility, and longevity.

In the late 1960s-early 1970s, the Commonwealth commissioned construction of the Building as part of the Capitol Complex. The Building was a twelve-story structure, with two separate heating, ventilation, and air-conditioning (HVAC) systems. The first HVAC system controlled air temperature on the basement and ground floors, and the second HVAC system controlled air temperature in the remainder of the Building.

During construction, various contractors used products containing PCBs. For our purposes, the relevant products included: adhesive tape used to seal duct board for the HVAC system; mastic between the floor tiles and concrete floors; gaskets on the perimeter of the HVAC system; and caulking between the pre-cast concrete exterior panels.

By 1994, Plaintiffs made plans to renovate the Building. Among the plans, Plaintiffs proposed removal of asbestos insulation to install a fire sprinkler system. In addition, Plaintiffs intended to replace or upgrade the Building's HVAC systems, electrical wiring, roof, exterior facade and elevators.

On June 16, 1994, a fire occurred on the Building's 6th floor. In the aftermath of the fire, PCBs were detected on surfaces and in the ambient air inside the Building. Ultimately, the Commonwealth imploded the Building in 1998 and replaced it with the Keystone Building.

B. Procedural History

In 1990, Plaintiff DGS commenced an original jurisdiction action with this Court against U.S. Mineral Products for alleged asbestos contamination of the Building. After the 1994 fire, however, additional Plaintiffs filed a second action alleging negligence and strict liability against U.S. Mineral Products for damages allegedly caused by PCB contamination. Plaintiffs subsequently joined Defendant,³ and we consolidated the two actions.

The cases eventually proceeded to a marathon trial before one of our distinguished senior judges. The jury was impaneled from Philadelphia County. At the trial's conclusion, the jury returned a Plaintiffs' verdict in the amount of $90 million. The Court subsequently reduced the award pursuant to a joint tortfeasor agreement, denied Defendant's post-trial motions, and molded the verdict to include delay damages. In total, the Court entered a $59,528,825 judgment against Defendant.

On Defendant's appeal, our Supreme Court reversed and remanded the matter for new trial. See Pa. Dep't of Gen. Servs. v. U.S. Mineral Prods. Co., 587 Pa. 236, 898 A.2d 590 (2006)(DGS I). Although many issues were resolved, a critical part of the Supreme Court's extensive determination was that incineration of a product was not an intended use of the product. As a result of that distinction, Plaintiffs could recover from Defendant for damages relating to pre-existing contamination in the Building, but they could not recover from Defendant for damages or contamination arising from the 1994 fire. Accordingly, Plaintiffs were limited to seeking building remediation and relocation costs caused by alleged PCB contamination that existed before the fire.

II. Present Proceedings

Prior to commencement of the second trial, the trial judge held a summary jury trial to assist the parties in assessing their positions and to negotiate settlement. In addition, the trial judge entertained extensive motions in limine. Of particular import here, the trial judge denied Plaintiffs' Motion to Exclude Evidence of Plaintiffs' Conduct. See Pa. Dep't of Gen. Servs. v. U.S. Mineral Prods. Co., (Pa.Cmwlth. Nos. 284 M.D.1990 and 244 M.D.1996, filed October 26, 2006).

The second trial began on January 29, 2007. Numerous live witnesses testified, extensive prior testimony was read and voluminous documents were received.

After the close of evidence, the trial judge submitted three special interrogatories to the jury. As previously stated, the first interrogatory asked the jury to determine whether Defendant's product was defective, that is, unsafe for its intended use. The jury returned a verdict in Defendant's favor on this issue. Consequently, the jury never reached the last two interrogatories: whether Defendant's product caused Plaintiffs' alleged harm and, the amount of Plaintiffs' damages as a result of PCB contamination, if any.

Plaintiffs timely filed post-trial motions, which are presently before the Court for disposition. First, Plaintiffs seek JNOV⁴ or a new trial asserting the jury's verdict is against the weight of the evidence that PCBs are defective. Plaintiffs also seek JNOV or new trial on the grounds the court committed error by admitting evidence regarding the absence of sprinklers, and evidence of certain repair costs Plaintiffs did not seek to recover. Further, Plaintiffs allege inadequate and insufficient opportunity for voir dire. As a final assignment of error, Plaintiffs allege juror misconduct and nondisclosure during voir dire.

Preliminarily, we set forth the guiding principles when considering motions for JNOV and new trial. The criteria for granting these mutually exclusive types of post-trial relief are different. Handfinger v. Phila. Gas Works, 439 Pa. 130, 266 A.2d 769 (1970).

Judgment notwithstanding the verdict may be entered on two bases: where the movant is entitled to judgment as a matter of law, and/or where the evidence is such that no two reasonable persons could disagree the verdict should have been rendered for the movant. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992); Moody v. Phila. Housing Auth., 673 A.2d 14 (Pa.Cmwlth.1996). On the first basis, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in movant's favor. Moure. On the second basis, the court reviews the evidentiary record and concludes the evidence is such that a verdict for the movant is beyond peradventure. Id. Judgment notwithstanding the verdict should not be entered where the evidence is conflicting on a material fact, and a reviewing court is required to consider the evidence, together with all reasonable inferences, in a light most favorable to the verdict winner. Moody.

In order to obtain a new trial, however, the moving party must demonstrate in what way trial error caused an incorrect result. Clack v. Commonwealth of Pa., Dep't of Transp., 710 A.2d 148 (Pa.Cmwlth.1998). Our analysis of whether Plaintiffs are entitled to a new trial follows a two step process. First, we must decide whether one or more mistakes occurred at trial. Harman ex rel. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116 (2000). Second, if we conclude a mistake occurred, we must determine whether the mistake is a sufficient basis for granting a new trial. Id. The harmless error doctrine underlies every decision to grant or deny a new trial. Id. A new trial is not warranted merely because some irregularity occurred during the trial or another trial judge would have ruled differently; the moving party must demonstrate prejudice resulting from the mistake. Id. In addition, a new trial based on weight of the evidence issues will not be granted unless the verdict is so contrary to the evidence as to shock one's sense of justice. Elliott v. Ionta, 869 A.2d 502 (Pa.Super.2005). A mere conflict in testimony will not suffice as grounds for a new trial. Id. In ruling on a motion for new trial, the court must review all the evidence. Abbott v. Onopiuk, 437 Pa. 412, 263 A.2d 881 (1970).

III. Post-Trial Motions

A. Weight of the Evidence

1. JNOV

Plaintiffs' first claim entitlement to JNOV or new trial on the ground the verdict is against the weight of the evidence. Before we examine Plaintiffs' substantive arguments, however, we first address Defendant's argument Plaintiff failed to properly preserve a request for...