Julian P. Wammock v. Celotex Corporation, National Gypsum Company

Citations: 793 F.2d 1518; 20 Fed. R. Serv. 1281; 1986 U.S. App. LEXIS 27306Docket: 85-8608

Court: Court of Appeals for the Eleventh Circuit; June 26, 1986; Federal Appellate Court

SummaryOriginalCytator Case TreatmentAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

Julian P. Wammock, a lifelong carpenter, won a jury verdict against National Gypsum Company for $40,000 in compensatory damages and $250,000 in punitive damages, stemming from his asbestosis diagnosis linked to asbestos exposure from the company's products. National Gypsum appealed, arguing that the trial was unfair and that the punitive damages lacked sufficient evidence. The appeal was heard by the Eleventh Circuit, which found no basis to overturn the jury's verdict regarding evidentiary rulings or trial fairness. However, the court recognized the challenge to punitive damages as involving complex state law issues and certified the matter for the Supreme Court of Georgia. The case, classified as a typical asbestos claim, involved Wammock's exposure to asbestos while using National Gypsum's joint compound during his construction career from the 1940s until his retirement in 1978. The trial proceeded in 1985 after numerous defendants were dismissed or settled, with National Gypsum being the sole remaining party. The trial followed a Standing Order for asbestos cases, although no final pretrial conference was conducted. A status conference directed Wammock's counsel to provide a witness list, which included Dr. Gerritt Schepers as an expert witness. The trial lasted four days, concluding with the jury's verdict on the same day the appellant's motion for judgment notwithstanding the verdict was denied.

National Gypsum, the appellant, raises three main arguments on appeal. First, it claims the lower court erred by excluding prior testimony from Dr. Gerritt Schepers that contradicted his trial testimony, particularly regarding punitive damages. Second, National Gypsum argues that the plaintiff's counsel's unfair trial tactics, combined with the court's haste to conclude proceedings and other trial irregularities, created a prejudicial environment that denied them a fair trial. Lastly, the appellant contends that the evidence presented at trial was insufficient to justify a punitive damages award under Georgia law.

The first contention focuses on the district court's refusal to admit transcripts of Dr. Schepers' prior inconsistent statements. During the trial, Dr. Schepers, a former director of the Saranac Laboratory, testified about the dangers of asbestos exposure and mentioned his past correspondence with National Gypsum regarding concerns over incorporating asbestos into their products. However, in previous testimonies, he did not recall any interactions with National Gypsum and stated he had corresponded with U.S. Gypsum Company instead. National Gypsum's counsel, unaware of these inconsistencies during direct examination, sought to introduce this prior testimony after discovering it later. The plaintiff's counsel objected, arguing they couldn't bring Dr. Schepers back to clarify the inconsistency. The court suggested a telephone deposition but ultimately denied the admission of the prior inconsistent testimony after further arguments.

The court acknowledged that while National Gypsum's trial counsel lacked specific knowledge of prior testimony, it was likely that the company's national counsel or legal department was aware of it. The court suggested that the admission of prior inconsistent statements could be possible if the defendant agreed to stipulate that Dr. Schepers would testify his recollection was refreshed by later examination of documents linking Saranac Laboratory to National Gypsum. Without such stipulation, the court indicated it would not allow the introduction of transcript statements without the opportunity for Schepers to address the inconsistencies due to his previous testimony.

On appeal, National Gypsum argued that three prior inconsistent statements should have been admitted as substantive evidence under Federal Rule of Evidence 801(d)(1)(A) and for impeachment under Rule 613(b). The appellant claimed the lower court erred by requiring prior confrontation before using the testimony and contended that the unexpected nature of Schepers' trial testimony justified admitting his earlier statements, especially concerning punitive damages. National Gypsum suggested the court's ruling stemmed from an unreasonable rush to conclude the trial.

Focusing on Rule 613(b), it was noted that traditional requirements for proving prior inconsistent statements through extrinsic evidence have been altered, now only requiring the witness to be given an opportunity to explain the statement at any point. The rule allows the court discretion to forgo this requirement in the interest of justice but does not eliminate the preferred method of confronting the witness with the inconsistent statement first. If a witness is unavailable after failing to confront them, the court may justifiably exclude the prior statement. Most courts emphasize the witness’s availability for recall as key to admissibility under Rule 613(b), supporting that errors occurred when prior inconsistent statements were excluded despite the witness being able to explain or deny them.

In United States v. McGuire, the court upheld the admission of extrinsic evidence regarding a witness's prior inconsistent statement, finding no reversible error despite the defendants' potential to call surrebuttal witnesses. The ruling emphasized that if a party opposing such evidence does not request to recall the witness for clarification, they waive their right to confront the witness under Rule 613(b). The Wilmington Trust case reinforced this principle by indicating that failure to recall an available witness allows for the admission of extrinsic evidence.

In the current case involving Dr. Schepers, the district court determined that the doctor was not available for recall, which was pivotal to its decision on admitting prior inconsistent statements. Although National Gypsum argued that Dr. Schepers was available, the court found otherwise, noting that alternatives like a telephone deposition were not pursued and that the witness’s whereabouts were unknown after his appearance. The lower court's implicit finding of unavailability was credible, given the circumstances.

The analysis also considered whether the lower court abused its discretion in excluding the statements given Dr. Schepers' unavailability. Judge Weinstein noted that discretion should rarely be exercised to deny a witness’s opportunity to clarify contradictions, except when a statement comes to counsel's attention after the witness has testified and the witness is unavailable through no fault of counsel. The appellant claimed this situation applied, asserting they were unaware of Dr. Schepers’ prior inconsistent testimony until after he had testified, thereby not responsible for his unavailability.

Appellant's trial counsel lacked specific knowledge of three previous inconsistent statements made by Dr. Schepers during his testimony but was familiar enough with the witness’s general testimony on asbestos exposure to recognize significant deviations. Counsel expressed astonishment at Schepers' contradictory statements regarding his involvement with National Gypsum and indicated that had he anticipated such testimony, he would not have posed certain questions. The core issue is not that counsel discovered inconsistencies post-testimony but that he failed to address them while Dr. Schepers was still on the stand. Although counsel hesitated to cross-examine without exact prior statements, he had enough information to either question the witness about the discrepancies or inform the court of his intent to revisit the matter later. This oversight risked the witness's unavailability, which ultimately occurred. The appellant argued that the unexpected nature of Schepers' testimony justified presenting prior transcripts post-testimony; however, counsel did not raise this issue promptly during the trial. Instead, he waited until after the testimony had concluded, failing to notify the court at the time of the inconsistency, thereby misleading the court into believing no issues existed. This lack of timely objection meant the opposing counsel was not given the chance to address the inconsistencies during redirect examination, violating procedural fairness principles.

The court addressed issues surrounding the failure to notify the defense of prior inconsistent statements from a witness, Schepers, until after he had left town, labeling this approach a "questionable trial tactic." Under Rule 613(b), the impeaching party should inform the court and opposing counsel of intentions to introduce impeaching statements during the witness's testimony, allowing for the witness's availability for explanation if necessary. The appellant missed the opportunity to object while Schepers was available, which contributed to his later unavailability. The case does not involve subsequently discovered prior inconsistent statements that would necessitate their admission despite the witness's absence.

The appellant argued that justice required admitting Schepers' prior testimony to provide the jury with a complete view of a critical issue. However, the court did not find that the contradictions in Schepers' statements were irreconcilable. Appellee’s counsel anticipated potential inconsistencies regarding Schepers’ identification of National Gypsum and clarified that his prior testimony related to other companies and that his memory had been refreshed by relevant documents already in evidence. The court deemed this explanation plausible and concluded that the exclusion of the prior statements did not constitute an abuse of discretion.

Plaintiff's Exhibits 28-33 consist of communications between Saranac and National Gypsum, many of which are stamped as received and signed by Schepers' secretary. Some correspondence involves Mr. Pollard, National Gypsum's safety director. Although the documents are not addressed to Dr. Schepers, they contain sufficient details about Saranac and National Gypsum that support his claim of having refreshed his memory during testimony. The appellant contends that the exclusion of prior inconsistent statements misled the jury regarding Dr. Schepers' testimony, arguing that without a reasonable explanation for the discrepancies, the jury was left with a flawed impression. Rule 613(b) allows a witness to explain inconsistencies, and the court cannot definitively ascertain whether Dr. Schepers' memory was indeed refreshed or if he misstated facts. The district court faced statements that could potentially be clarified if the witness were available; however, defense counsel did not preserve the witness's availability for further questioning. The inconsistent statements were introduced after the witness's testimony and after all other evidence was presented, with defense counsel failing to raise timely objections that could have negated the need for prior statements. The witness's location was unknown, and there is no evidence in the record to suggest that a brief recess could have facilitated the witness's return. Therefore, the district court did not abuse its discretion in excluding Dr. Schepers' prior statements.

Regarding the fairness of the trial, the appellant argues that various actions by the opposing counsel and the trial judge led to a fundamentally unfair trial. Specific complaints include the admission of numerous documents not listed as exhibits and previously undisclosed deposition testimony, violating court orders. The appellant also criticizes the lower court's evidentiary rulings, suggesting that the court was overly lenient, allowing irrelevant and prejudicial evidence. Lastly, the appellant asserts that the expedited nature of the trial created an environment akin to a trial by ambush, compromising fairness. However, upon review, it is determined that no such ambush occurred during the proceedings.

The appellant contends that the lower court incorrectly admitted deposition testimony from Albert Hays due to the appellee's failure to designate the testimony as required by a standing order. Despite this technical violation, Hays was listed as a potential witness prior to trial, which mitigated any claims of prejudice or surprise regarding the testimony's admission. The court's handling of the matter was upheld, emphasizing the importance of judicial efficiency without compromising fairness or justice. The absence of a pre-trial conference may have affected counsel's familiarity with the evidence, but there was no indication that the court’s rulings were unduly rushed or unfair. 

Regarding punitive damages, the appellant argues that the evidence presented at trial was insufficient under Georgia law. The court notes a lack of clear guidance from Georgia law on punitive damages in asbestos cases and decides to certify this issue to the Supreme Court of Georgia for clarification. This approach aligns with precedent in similar cases, such as Jackson v. Johns-Manville, which recognized the need for state law guidance in asbestos litigation and opted for certification to resolve legal uncertainties.

The issue of punitive damages in asbestos cases is identified as having significant implications under state law, warranting certification to the Supreme Court of Georgia. The court plans to certify the question regarding punitive damages based on the specifics of this case, following Rule 36 of the Georgia Supreme Court and relevant state statutes. Counsel is instructed to submit a joint statement of facts and the certified question, along with additional briefs on the punitive damages topic, which will be managed by the clerk. The district court's trial proceedings are affirmed as fair and not rushed, and it correctly denied the admission of prior inconsistent statements from Dr. Schepers. The determination of the punitive damages issue is contingent upon the Georgia Supreme Court's response to the certification. The court also notes that the appellant's argument concerning the admissibility of prior statements under Federal Rules of Evidence does not need separate consideration, as the criteria for admissibility were met in this case, particularly regarding the prior statement's inconsistency and oath status. The court refrains from expressing an opinion on the cross-examination requirements related to the admissibility under the different rules. Two recent cases are mentioned, indicating that the admissibility of prior inconsistent statements can vary from established precedents.

The court determined that excluding the superior's testimony did not constitute an error, as the witness had not been questioned about specific remarks. In United States v. Leslie, the appellate court upheld the exclusion of extrinsic evidence regarding a witness's prior inconsistent statement, concluding that the defendant waived his right to question the witness about that statement by declining multiple opportunities provided by the district court. This decision diverges from other precedents since the witness was indeed available for recall, but it is not binding in the current circuit and is subject to further review by the Fifth Circuit.

Rule 613(b) does not mandate that the party introducing evidence of an inconsistent statement must allow the witness an opportunity to explain; rather, it requires that the witness be afforded that opportunity, creating no obligation for either side to recall the witness. Research revealed limited case law on the "interests of justice" provision in Rule 613(b). In a relevant case, In re Corrugated Container Antitrust Litigation, the court found no need to delve into the provision's scope due to the minimal impeachment value of the testimony in question.

The lower court's findings also hinged on the fact that National Gypsum’s counsel was present during the prior statements, implying knowledge of those statements within the legal department. The appellant acknowledged that national counsel had knowledge of the statements but argued that holding trial counsel accountable for such knowledge would complicate asbestos litigation due to its complexity and volume. While acknowledging the challenges of trial counsel being intimately familiar with every prior testimony, it was noted that with adequate preparation from national counsel, trial counsel should be able to recognize significant deviations from a witness's previous statements.

Condoning the introduction of prior inconsistent statements based solely on trial counsel's lack of knowledge of such inconsistencies would significantly increase litigation costs for plaintiffs, particularly involving expert witnesses. The decision in this case relies on the knowledge that trial counsel had, without addressing the outcome if counsel had been unaware of the discrepancies. The appellant asserts that the plaintiff is responsible for the absence of Dr. Schepers, referencing a trial court comment suggesting the plaintiff should keep the witness available. However, this comment was made in the context of Dr. Schepers potentially serving as a rebuttal witness regarding the appellant's threshold limit value (TLV) defense, not as an indication that his testimony would be contested. By releasing Dr. Schepers, the plaintiff was aware he was foregoing a rebuttal option on the TLV, but not that he would lose the chance to clarify prior inconsistent statements. Thus, the plaintiff cannot be blamed for Dr. Schepers' later unavailability. The Mississippi Supreme Court declined to certify the matter, yet there remains an acknowledgment of the Fifth Circuit's initial decision to allow state courts to first address the issue.