Smith v. Gulf Oil Co.

Citations: 995 F.2d 638; 1993 WL 184065Docket: Nos. 91-3034, 91-3036, 91-3040 and 91-3077

Court: Court of Appeals for the Sixth Circuit; June 3, 1993; Federal Appellate Court

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Plaintiffs Harry Smith, Joseph Carbone, and Ashton H. Reeves appeal a special jury verdict that found they did not suffer from an asbestos-related disease, which absolved the defendant shipowners of liability under the Jones Act and maritime law. They assert two main errors on appeal: first, the district court erred by preventing them from arguing that the shipowners were liable for exposing them to hazardous secondary cigarette smoke in addition to asbestos; second, they argue the court wrongly allowed alternate jurors to participate in deliberations without voting on the verdict. The background reveals that many seamen filed asbestos-related injury claims in the Northern District of Ohio, leading to the establishment of a specialized litigation docket (MARDOC). The trial commenced in October 1990, with a bifurcated structure where Phase I determined the existence of asbestos-related disease and compensatory damages, followed by Phase II focusing on liability. During Phase I, the plaintiffs challenged a ruling that barred them from arguing that the shipowners were liable for secondary smoke exposure, which arose after the plaintiffs sought to exclude evidence about their own smoking habits.

Plaintiffs argued that shipowners violated their duty of care under the Jones Act and maritime law by permitting smoking in poorly ventilated areas, leading to unsafe living and working conditions. The district court rejected this argument, denying the plaintiffs' motion in limine and ruling that evidence could be presented showing that cigarette smoking, rather than asbestos, caused certain plaintiffs' lung diseases. The court concluded that cigarette smoke alone could not render a ship unseaworthy, thus limiting the shipowners' liability to whether asbestos exposure caused the plaintiffs' ailments. Consequently, the court did not instruct the jury that the presence of cigarette smoke could indicate negligence or unseaworthiness.

The appellants did not contest the court's allowance of evidence regarding their own smoking but appealed the ruling that prevented them from arguing the shipowners' liability for tobacco-related illnesses. Additionally, the appellants raised a concern regarding the presence of alternate jurors during deliberations. The district court proposed that ten jurors, including four alternates, participate in the deliberation process, with the alternates observing but not voting. This arrangement aimed to avoid a mistrial due to potential dismissals of regular jurors. After discussions and stipulations, the court decided to disclose verdicts only to counsel, leading to further disagreements about the voting process. The plaintiffs’ attorney expressed concern that the alternates' presence would interfere with jury deliberations, while the court emphasized the importance of retaining the same jury throughout the trial phases.

The district judge acknowledged the unconventional approach taken in this case, which ultimately benefited the Plaintiffs by allowing them conventional discovery processes. He decided to disclose the verdicts of the jury, with six jurors deliberating while four were excused, and indicated a shift toward more traditional case management, moving away from multiple cases. Following an off-record meeting where the parties reached an agreement, the alternates participated in deliberations, but only the six regular jurors voted. The jury ultimately found that Smith, Carbone, and Reeves did not suffer from asbestos-related injuries.

In the subsequent appeal, Smith, Carbone, and Reeves argued that the district court erred by barring their cigarette-smoke liability theories. They contended that questions regarding the shipowners' negligence and the seaworthiness of a smoke-filled ship were factual issues for the jury. However, the court noted that the plaintiffs had not formally pleaded this liability despite years since the suit was filed and only raised it informally late in the trial. The court deemed it within its discretion to eliminate these issues, citing the Federal Rules of Civil Procedure which grant district courts broad authority to streamline trial issues and dismiss unmeritorious claims during pretrial conferences. The rule emphasizes the court's power to clarify litigable issues and eliminate frivolous arguments.

The addition of provisions aims to enhance efficiency and conserve judicial resources by identifying core issues before trial, allowing for the dismissal of frivolous claims or defenses during pretrial conferences without needing formal motions. Fed. R. Civ. P. 16 emphasizes the importance of simplifying issues and preventing surprises to expedite case resolution. Specifically, Rule 16(c)(1) mandates parties to clarify and streamline issues. In this case, plaintiffs' late introduction of a cigarette-smoke theory is deemed inconsistent with the responsibilities outlined in the advisory committee’s notes, which require attorneys to assist the court in identifying relevant factual issues for trial. The plaintiffs failed to provide adequate grounds to believe that the shipowners were liable for smoking-related illnesses, as this theory was not mentioned in their complaints, discovery documents, or pretrial disclosures. Despite the case being pending for four years, the plaintiffs only raised the cigarette-smoke argument two days before trial, lacking supporting medical evidence or expert testimony. The plaintiffs did not submit a formal motion to amend their claims or properly articulate their argument in the trial context, raising doubts about their commitment to this theory. Their argument was advanced only in an oral motion concerning the exclusion of evidence about the plaintiffs' smoking habits, without any legal citations or supporting evidence.

Plaintiffs’ counsel failed to follow up on a court ruling regarding their tobacco theory by not submitting any memorandum or evidence for reconsideration. The lack of evidence to separate passive shipboard smoke from other tobacco smoke sources suggests the argument is not presented seriously. Counsel's remarks indicate the tobacco theory was used tactically to influence the shipowners and the court, raising questions about its legitimacy. Consequently, the district court correctly exercised its authority to dismiss the plaintiffs' tobacco claims based on the frivolity of the argument.

Regarding the participation of alternate jurors in deliberations, the district court allowed four alternates to deliberate with the jury while only the six regular jurors would vote on the verdict, following a purported stipulation between the parties. The plaintiffs argue that there was no clear agreement allowing alternates to participate, claiming any consent was coerced. They assert that even if there was consent, the presence of alternates violated jury deliberation sanctity, constituting reversible error. The defendants counter that the plaintiffs either stipulated to the arrangement or failed to object, thus waiving their right to appeal the issue. They also argue that federal rules permit such stipulations and that any error from the alternates' presence was harmless due to a lack of demonstrated prejudice. The court's inquiry will focus on whether a valid stipulation existed and if it was obtained under coercive circumstances.

Plaintiffs acknowledge an agreement regarding the alternate juror arrangement was reached during an off-record conference but argue that the lack of a written or clearly recorded stipulation renders it insufficient to deviate from the standard practice of discharging alternates at the start of deliberations. While most courts, particularly in civil cases, have ruled that a formalized written agreement is not essential, it is advised that trial courts should document such stipulations. The absence of a written agreement does not automatically constitute error. The record indicates that the plaintiffs' counsel did agree to the arrangement, despite claims of coercion by the district court, which had threatened to eliminate consolidated trials if the stipulation was not accepted. The court's strong language was deemed insufficient to undermine the competence of the plaintiffs’ experienced counsel, who acted in the clients' interests. The plaintiffs' argument is further complicated by Federal Rule of Civil Procedure 47(b), which allows for alternate jurors but stipulates they should be discharged after jury retirement unless they replace a juror. The court's decision to allow alternates to deliberate contradicts Rule 47(b), but violations of this rule have previously been subject to waiver and harmless error analysis in the circuit. Thus, the plaintiffs' position is weakened as they cannot effectively argue against their own stipulated agreement.

In Cabral v. Sullivan, the First Circuit affirmed the district court's judgment, noting that Rule 47 prohibits alternate jurors from deliberating with regular jurors without party consent. Any potential claims of prejudice were waived by the parties' lack of objections when the court proposed allowing an alternate juror to remain. The court referenced United States v. Olano, which determined that the presence of alternates during deliberations does not constitute plain error under similar procedural rules. The jury awarded $166,000 in compensatory damages to the estate of deceased plaintiff Maurice J. Moline. The court reiterated that shipowners have an absolute duty to provide a seaworthy vessel, including safe living conditions. Unsafe conditions, such as lingering toxic fumes, can render a vessel unseaworthy and expose shipowners to liability under the Jones Act. Even if specific claims, like those related to cigarette smoke, were not explicitly stated in the complaints, the court emphasized the importance of clearly articulating claims during pretrial proceedings. Compliance with Civil Rule 16 is crucial in shaping the issues for trial. Additionally, plaintiffs highlighted testimony regarding the carcinogenic effects of asbestos, which requires the presence of cigarette smoke to exacerbate asbestotic diseases.

Plaintiffs failed to diligently pursue the cigarette-smoke theory of liability, which remains unrectified even after a review of the appeal record. The alternate juror system was abolished effective December 1, 1991, due to concerns over the burdens placed on alternates who listened to evidence without participating in deliberations. Rule 47(b) now states that the court will allow peremptory challenges as outlined in 28 U.S.C. 1870, while Rule 48 mandates that juries consist of six to twelve members, all of whom must participate in the verdict unless excused. A unanimous verdict is required unless parties agree otherwise, and no verdict can be rendered by a jury with fewer than six members. The Fourth Circuit uniquely applies a per se reversal standard for Rule 47(b) violations, but relevant cases are questionable post-Olano, which highlighted the need for specific evidence of alternate jurors' impact on deliberations. Here, it's assumed that alternates followed the court’s instructions. Unlike Olano, which treated Rule 24(c) as nonwaivable, courts generally allow waivers for Rule 47(b). Additionally, defendant Pope, Talbot, Inc. cross-appealed, disputing personal jurisdiction and claiming waiver of jurisdiction objections. However, the court's decision in favor of the defendants on the merits renders this procedural issue unnecessary to address.