Com. v. United States Mineral Products Co.

809 A.2d 1000

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., Philips Electronics North America Corporation, Advance Transformer Company, and Monsanto Company, Defendants.

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, Defendant.

Commonwealth Court of Pennsylvania.

Decided October 16, 2002.

Publication Ordered November 1, 2002.

Thomas W. Henderson, Pittsburgh and Kenneth B. McClain, Independence, MO, for plaintiffs.

Thomas M. Goutman, Philadelphia, for defendant, Monsanto Company.

Kenneth R. Neal, Hartford, CT, for defendant, U.S. Mineral Products Co.

Joyce S. Meyers, Philadelphia, for defendant, Courtaulds Aerospace, Inc. OPINION BY Senior Judge MIRARCHI.

In August, 1990, the Department of General Services commenced an action against United States Mineral Products Company (U.S. Mineral) for damages arising out of alleged asbestos contamination of the Transportation and Safety Building (T & S Building) in Harrisburg.¹ In February, 1996, the Department of General Services and the Department of Transportation, along with the Public Utility Commission, the Emergency Management Agency and the Department of State (collectively, Plaintiffs) commenced a new action against U.S. Mineral seeking damages for alleged contamination of the T & S Building by polychlorinated biphenyls (PCBs). On February 7, 1997, Plaintiffs filed an amended complaint naming six additional defendants, Certainteed Corporation, Courtaulds Aerospace, Incorporated, Chemrex, Incorporated, Philips Electronics North America Corporation, Advance Transformer Company, and Monsanto Company.

All parties filed motions for summary judgment. This Court granted the motions of Chemrex, Incorporated and Philips Electronics North America Corporation, Advance Transformer Company. The case then proceeded to trial. During the trial, the parties presented the testimony of numerous expert witnesses and numerous exhibits. At the conclusion of the trial, the jury found that U.S. Mineral's and Courtaulds' products were not defective, and that Monsanto's product was defective and was a substantial factor in causing Plaintiffs' damages. The jury assessed damages against Monsanto in the amount of $90 million. The amount of the verdict was subsequently reduced to $45 million to reflect the automatic, pro rata, 50% reduction that Plaintiffs agreed to in a Joint Tortfeasor Release and Settlement Agreement that it had entered into with CertainTeed Corporation. Following the verdict, Monsanto filed a motion for post-trial relief.

In its motion, Monsanto raises numerous allegations of error which allegations can be categorized as follows: causation and damages; product defect issues; joinder issues; privilege claims; mistrial issues; trial issues; jury instructions; and excessive and exorbitant verdict. We shall address each category of issues seriatim.

Causation

Monsanto first contends that Plaintiffs failed to prove a causal connection between the presence of trace amounts of PCBs in the Building and their damage claims. With regard to this issue, Monsanto makes the following specific arguments: (1) Pennsylvania Law requires Plaintiffs to prove that the presence of PCBs in the Building was the "but for" and proximate cause of their claimed damages; (2) Plaintiffs' failure to offer expert testimony of key causation issues requires entry of judgment for Monsanto; (3) the undisputed evidence demonstrates that Plaintiffs would have incurred the alleged building-related property damage, regardless of PCBs; and (4) Plaintiffs' multiple judicial admissions established that Plaintiffs' damages resulted from the need for asbestos removal.

Section 402A of the Restatement (Second) of Torts has been adopted as the law of this Commonwealth applicable to product liability cases. Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). To recover under Section 402A, a plaintiff must establish that the product was defective, that the defect was a proximate cause of the plaintiff's injuries, and that the defect causing the injury existed at the time the product left the seller's hands. Davis v. Berwind Corp., 547 Pa. 260, 690 A.2d 186 (1997).

Causation involves two separate and distinct concepts, cause in fact and legal (or proximate) cause. Summers v. Giant Food Stores, Inc., 743 A.2d 498 (Pa.Super.1999),petition for allowance of appeal denied, 564 Pa. 713, 764 A.2d 1071 (2001). Cause in fact or "but for" causation provides that if the harmful result would not have come about but for the negligent conduct, then there is a direct causal connection between the negligence and the injury. First v. Zem Zem Temple, 454 Pa.Super. 548, 686 A.2d 18 (1996),petition for allowance of appeal denied, 549 Pa. 701, 700 A.2d 441 (1997). Legal or proximate causation, on the other hand, involves a determination that the nexus between the wrongful acts (or omissions) and the injury sustained is of such a nature that it is socially and economically desirable to hold the wrongdoer liable. Id. Proximate cause exists where a defendant's wrongful conduct is a substantial factor in bringing about plaintiff's harm. Gutteridge v. A.P. Green Services, Inc., 804 A.2d 643 (Pa.Super.2002). Under the law of Pennsylvania, a cause can be found to be substantial so long as it is significant or recognizable; it need not be quantified as considerable or large. Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa.Super.1998).

Causation is a question of fact to be determined by the fact finder. Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). Only if the facts are not in dispute and thus reasonable minds cannot differ can the question be removed from the consideration of the fact finder, since then there is only a question of law to be decided. Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

At trial, Plaintiffs presented the testimony of Gary Crowell, the Secretary of the Department of General Services. Secretary Crowell testified that he made the decision to demolish the T & S Building. Secretary Crowell testified that his decision was based primarily on "the amount of contamination that was in that building, the risk that I thought it posed for the people who occupied that building, the people of the private sector who came in to do business in that building." Notes of Testimony (N.T.), June 1, 1999, p. 14. Secretary Crowell testified that the T & S Building would not have been torn down based solely upon the presence of asbestos. N.T., June 3, 1999, p. 85.

Joseph Cocciardi, a contractor who performed safety and environmental work at the T & S Building, testified that PCBs were discovered in the T & S Building approximately two weeks after the fire. Cocciardi testified that PCBs were found "in the common plenum areas ... pretty much throughout the building." N.T., May 24, 1999, p. 161. Cocciardi also testified that PCBs were subsequently found in floor troughs and inside some computers, N.T., May 24, 1999, p. 168, in a stairwell, Id. at 200, in an elevator, Id. at 203, and in routinely occupied areas of the building, Id. at 210. He also testified that "we were finding PCBs above the one microgram hundred squared centimeters level that NIOSH² was recommending to us as a cleanup level." N.T., May 24, 1999, p. 161.

William Ewing, an industrial hygienist, testified that there was widespread PCB contamination in the T & S Building and that the concentration of PCBs on surfaces within the building exceeded the EPA limits and the NIOSH recommended limits. N.T., May 20, 1999, p. 303. Ewing also testified that the ductwork in the T & S Building represented the largest source of PCBs in the building. Id. at 315. James Melius, a physician and epidemiologist, testified that, had the T & S Building not been appropriately cleaned, it would not have been safe for people to go back into the building and that there would have been an increased risk to their health. N.T., May 17, 1999, p. 147. Richard Lemen, an epidemiologist, testified that a building with concentrations of PCBs exceeding the NIOSH recommendation would place individuals in the building at risk for developing certain health problems. N.T., May 26, 1999, p. 156.

Based on the above testimony, a jury could reasonably conclude that the presence of PCBs in the T & S Building was both the cause in fact and the proximate cause of Plaintiffs' claimed damages.

Monsanto argues that Plaintiffs were required to present expert testimony to support a finding that PCBs could not be cleaned up and the building safely reoccupied, that PCBs required the demolition and reconstruction of the building and that PCBs permanently damaged the building beyond repair. In Young v. Department of Transportation, 560 Pa. 373, 744 A.2d 1276 (2000), our Supreme Court addressed the issue of when expert testimony is needed.

Expert testimony is often employed to help jurors understand issues and evidence which is outside of the average juror's normal realm of experience. We have stated that,

[t]he employment of testimony of an expert rises from necessity, a necessity born of the fact that the subject matter of the inquiry is one involving special skill and training beyond the ken of the ordinary layman.

Reardon v. Meehan, 424 Pa. 460, [465], 227 A.2d 667, 670 (1967). Conversely,

[I]f all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as

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