Opinions of the United
1999 Decisions                                                                                                             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Precedential or Non-Precedential: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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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 non-
appearing 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 non-
appearing 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, 

, 48 (3d. Cir. 1997);
O'Leary v. Liberty Mutual Ins. Co., 

, 1064 (3d
Cir. 1991); Gregory v. Chehi, 

, 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 

(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 

;

.

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, 

, 1367 (Pa. Super. Ct. 1992)
(en banc) (citing Thompson v. Fox, 

(Pa. 1937));
see Franklin Decorators, Inc. v. Kalson, 

(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, 

,
324-26 (3d Cir. 1975). Full satisfaction may arise from a
settlement with less than all tortfeasors. See 

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.' " 

(quoting Blanchard v. Wilt, 

(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, 

, 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." 

see Hilbert v. Roth, 

(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."); 

. 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

(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., 

, 548 (3d Cir.
1996)(citing Shaffer v. Smith, 

, 874 (Pa. 1996),
and Safeguard Mut. Ins. Co. v. Williams, 

, 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 

. 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." 

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.

Restatement recognizes that the finality
inquiry focuses upon "whether the conclusion in question is
procedurally definite." 

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.

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.

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., 

(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, 

, 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, 

, 1093 (Pa.
Super. Ct. 1987))); cf. Burlington Northern R.R. Co. v. Hyundai Merchant
Marine Co., Ltd., 

, 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.

The case involved neither a reverse bifurcated
proceeding, nor a jury verdict, nor a settlement. 

determined that issue preclusion did not apply because
the issues presented in the two proceedings were not the
same. 

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." 

cmt. a. The comments
further provide that the exception does not apply where
"review is available but not sought." 

Pennsylvania Supreme Court has adopted
section 28, Clark v. Troutman, 

(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, 

, 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.'

(quoting Dyndul v. Dyndul, 

, 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. 

Similarly, in Burlington Northern R.R. v. Hyundai
Merchant Marine Co., 

, 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 

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 

("[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., 

, 322 (4th Cir. 1993);
Southern Leasing Corp. v. Tufts, 

, 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, 

,
1122 (9th Cir. 1997) (quoting Anderson-Cottonwood Disposal Serv. v.
W.C.A.B., 

, 332, 

, 340 (1982)); In re
DES Litig., 

, 24 (2d Cir. 1993) see also Hernandez v. Region
Nine Housing Corp., 

, 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., 

, 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., 

, 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., 

, 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.

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 post-
Eckenrod 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, 

(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. 

Notably absent from the court's summary of asbestos liability law was
the Eckenrod "frequency, regularity and proximity" formula.
16
Manville Corp., 

, 239 (Pa. Super. Ct. 1992);
Ottavio v. Fireboard Corp., 

, 1298 (Pa. Super.
Ct. 1992); Lilley v. Johns-Manville Corp., 

, 209
(Pa. Super. Ct. 1991). We find Lilley v. Johns-Manville Corp.,

, 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.

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." 

While relying heavily upon Eckenrod the court did not
invoke a "frequency, regularity and proximity" test. See 

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." 

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, 

, 264 (3d Cir. 1995); Fineman v. Armstrong World
Indus. Inc., 

, 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.' "

(quoting Reed v. Philadelphia
Bethlehem & New England R.R. Co., 

, 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." 

v. Airco Inc., 

, 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 

; 

-10; 

. 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., 

, 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 

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 

. 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., 

, 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., 

, 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." 

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

, 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.,

, 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." 

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., 

, 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