Kirk v. Raymark Industries, Inc.

Opinions of the United
1995 Decisions States Court of Appeals
for the Third Circuit

7-27-1995

Kirk v Raymark Industries
Precedential or Non-Precedential:

Docket 94-1745

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 94-1745 and 94-1746

SARAH A. KIRK, Administratrix of
the Estates of KIRK, Alfred T., Deceased
and KIRK, Sarah A. in her own right

v.

RAYMARK INDUSTRIES, INC.; EAGLE-PICHER INDUSTRIES, INC.;
KEENE CORPORATION; GARLOCK INC; OWENS-CORNING FIBERGLAS
CORPORATION; CELOTEX CORP.; GAF CORPORATION;
OWENS-ILLINOIS GLASS COMPANY

Owens-Corning Fiberglas
Corporation,
Appellant

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 88-cv-03736)

Argued February 14, 1995
Opinion Filed April 14, 1995
Panel Rehearing Granted May 22, 1995
Resubmitted on Supplemental Briefing June 12, 1995
BEFORE: STAPLETON, GREENBERG and COWEN,
Circuit Judges

(Filed: July 27, 1995)

Joseph M. Greitzer
Jerry Kristal (Argued)
Greitzer & Locks
1500 Walnut Street
20th Floor
Philadelphia, PA 19102

Counsel for Appellee
Sarah A. Kirk, Administratrix of the
Estates of KIRK, Alfred T., Deceased

1
 and KIRK, Sarah A. in her own right

Robert N. Spinelli
W. Matthew Reber (Argued)
Kelley, Jasons, McGuire & Spinelli
1234 Market Street
Suite 1300
Philadelphia, PA 19107

Counsel for Appellant
Owens-Corning Fiberglas Corporation

OPINION

COWEN, Circuit Judge.

This asbestos-related personal injury action was tried

to a jury in the United States District Court for the Eastern

District of Pennsylvania. The jury returned a verdict in favor

of the plaintiff in excess of two million dollars. On

application by counsel, the district court granted plaintiff

delay damages in the amount of $520,684. In these consolidated

appeals, we are called on to determine whether: (1) the district

court abused its discretion by denying the defendant's challenge

for cause of two jurors who allegedly evidenced bias against the

defense; (2) the defendant has waived any claim that there was a

violation of its statutory right to exercise peremptory

challenges; (3) a denial or impairment of the exercise of

peremptory challenges occurs if the defendant uses one or more

challenges to remove jurors who should have been removed for

cause; and (4) a per se reversal is the appropriate remedy for

2
such impairment or whether the defendant must also make a showing

of prejudice. Additionally, we are called upon to determine

whether the district court committed an error of law by: (1)

allowing plaintiff to introduce into evidence the prior testimony

of an out of court expert witness from an unrelated state court

action; (2) permitting plaintiff to introduce the interrogatory

responses of a co-defendant who settled with the plaintiff prior

to trial; (3) awarding plaintiff delay damages pursuant to Rule

238 of the Pennsylvania Rules of Civil Procedure.

Because we conclude the district court abused its

discretion in denying the defendant's challenge for cause of two

jurors during voir dire, and because we conclude that this

effected a denial or impairment of the defendant's statutory

right to peremptory challenges requiring per se reversal, we will

reverse the judgment of the district court and remand for a new

trial on the issue of damages and liability.0 Since it is likely

that the hearsay issues and the issue of delay damages may arise

again during the new trial, we deem it appropriate to offer the

district court guidance. On these subjects, we conclude that the

district court erred as a matter of law in allowing the

introduction of hearsay evidence, but did not err in ruling that

0
Defendant also argues that the district court abused its
discretion in denying: (1) defendant a fair opportunity to prove
the liability of a settled co-defendant by denying defendant's
request for a continuance to subpoena product identification
witnesses; and (2) defendant's request for a new trial on the
grounds of excessiveness of the verdict. Because of our decision
to reverse the judgment of the district court and remand for a
new trial on the issue of damages and liability, we need not
address these arguments.

3
delay damages would be permitted when delay was caused by a

judicial stay for which the plaintiff was not responsible.

I. Factual and Procedural History

Alfred Kirk ("decedent"), a retired painter, died on

July 5, 1988 at the age of 65 from malignant asbestos-induced

mesothelioma. Mrs. Sarah Kirk ("Kirk"), suing on behalf of

herself and her deceased husband's estate, filed this diversity

action against eight defendants, including Owens-Corning

Fiberglas Corporation ("Owens-Corning").0 Kirk alleged that her

husband's mesothelioma was caused by exposure to dust from

asbestos products during his employment at the New York Shipyard

in Camden, New Jersey, during the late 1950's and early 1960's.

By order dated July 29, 1991, the Judicial Panel on

Multidistrict Litigation ("MDL") transferred all pending federal

asbestos personal injury actions to the Eastern District of

Pennsylvania. Pursuant to the MDL Panel's Order, all federal

asbestos cases were stayed until the summer of 1993.

During jury selection, Owens-Corning challenged for

cause two prospective jurors maintaining that the prospective

jurors could not be impartial because they revealed considerable

potential bias against Owens-Corning during voir dire. The

0
Of these eight defendants, four were bankrupt at the time of
trial. Of the four remaining defendants, Kirk settled with
Garlock, Inc., GAF Corporation, and Owens-Illinois prior to
trial. Kirk also previously filed an asbestos-related lawsuit in
the Philadelphia Court of Common Pleas against Pittsburgh Corning
Corporation, H.K. Porter Company, Inc., and Southern Textile
Corporation. Of these defendants, two were bankrupt and Kirk
settled with Pittsburgh Corning prior to trial.

4
district court refused to strike these prospective jurors for

cause, and Owens-Corning was then compelled to utilize two of its

three peremptory strikes to remove these prospective jurors.0

On December 13, 1993, the trial (which was reverse-

bifurcated) began with issues of medical causation and damages.

At the conclusion of this phase of the trial, the jury returned a

verdict in favor of the Estate of Alfred Kirk for $1.2 million

and in favor of Sarah Kirk for $810,000. The liability phase of

the trial commenced several days later before the same jury that

had previously heard the damages phase. At the conclusion of the

liability trial, the jury returned a verdict against Owens-

Corning. The jury also found that the decedent was not exposed

to dust emitted by any asbestos-containing product manufactured

by co-defendant Garlock, Inc. ("Garlock").

Following the jury verdict, Owens-Corning moved for a

new trial, alleging several trial errors including: (1) failing

to strike two prospective jurors for cause; and (2) allowing the

introduction of hearsay evidence. This application was denied by

0
We granted panel rehearing for the purpose of determining
whether reversal is required when a party is compelled to expend
or "waste" any number of its peremptory strikes to remove a
prospective juror who should have been removed for cause. In the
original panel opinion, we concluded that Owens-Corning was
prejudiced by the presence of these two jurors sitting on the
jury. We were shocked to learn, in a petition for rehearing in
banc, that these two jurors never actually served because Owens-
Corning exercised peremptory strikes to remove these jurors. In
the original briefing, as well as during argument before this
panel, both parties failed to inform the Court that these two
jurors were never seated on the jury. We are deeply disturbed by
the fact that the briefing in this matter did not make clear to
us this crucial fact and caused the Court to waste valuable time
and judicial resources.

5
the district court. Kirk filed an application for delay damages

pursuant to Rule 238 of the Pennsylvania Rules of Civil

Procedure, which the district court granted in the amount of

$520,684. Owens-Corning appeals from both the judgment and the

award of delay damages.

Owens-Corning argues that the district court made

several errors which require reversal of both the damage and

liability phases of the trial, and that the district court

improperly denied its post-verdict motion for a new trial.

Finally, Owens-Corning claims that delay damages should not have

been awarded to Kirk, because the delay was caused by the

plaintiff filing simultaneous federal and state court actions

and/or caused by the MDL order staying all asbestos cases, and

was not caused by any bad faith on the part of Owens-Corning. We

will address each of these arguments seriatim.

The district court had jurisdiction to hear this case

pursuant to 28 U.S.C. § 1332. Our jurisdiction is premised on 28

U.S.C. § 1291 as the judgment entered was a final order.

II. Juror Challenges

A. Challenges for Cause

Owens-Corning argues that the district court erred in

refusing to strike for cause two prospective jurors (juror #251

and juror #45) who the defendant argues revealed considerable

potential bias against it during voir dire. As a consequence,

Owens-Corning claims that it was forced to expend or "waste" two

of its peremptory strikes to remove these two jurors from the

6
jury. We review for abuse of discretion a district court's

decision regarding a motion to dismiss a juror for cause. United

States v. Polan, 970 F.2d 1280, 1284 (3d Cir. 1992), cert.

denied, __ U.S. __, 113 S. Ct. 1367 (1993) (citing United States

v. Salamone, 800 F.2d 1216, 1226 (3d Cir. 1986) (the factual

determination by the district court whether a juror can serve

impartially is entitled to special deference when reviewed on

appeal), cert. denied, 498 U.S. 1030, 111 S. Ct. 685 (1991)).

Because the trial judge is in the best position to

assess the credibility and demeanor of the prospective jurors,

"district courts have been awarded ample discretion in

determining how best to conduct the voir dire." Waldorf v.

Shuta, 3 F.3d 705, 710 (3d Cir. 1993) (citing Rosales-Lopez v.

United States, 451 U.S. 182, 189, 101 S. Ct. 1629, 1635 (1991)).

In determining whether a particular juror should be excused for

cause, our main concern is "whether the juror holds a particular

belief or opinion that will `prevent or substantially impair the

performance of his duties as a juror in accordance with his

instructions and his oath.'" Salamone, 800 F.2d at 1226 (citing

Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 852
(1985)). "A juror is impartial if he or she can lay aside any

previously formed `impression or opinion as to the merits of the

case' and can `render a verdict based on the evidence presented

in court.'" Polan, 970 F.2d at 1284 (citing Irvin v. Dowd, 366

U.S. 717, 723, 81 S. Ct. 1639, 1643 (1961)). However, the

district court should not rely simply on the jurors' subjective

assessments of their own impartiality. See Waldorf, 3 F.3d at

7
710 (district court relied too heavily on jurors' assurances of

impartiality); see also Government of the Virgin Islands v.

Dowling, 814 F.2d 134, 139 (3d Cir. 1987) (though a juror swears

that he could set aside any opinion he might hold and decide the

case on the evidence, a juror's protestation of impartiality

should not be credited if other facts of record indicate to the

contrary), aff'd, 493 U.S. 342, 110 S. Ct. 668 (1990).

Owens-Corning argues that prospective juror #251 should

have been struck for cause because he worked with asbestos-

containing products for many years and indicated during voir dire

that he was leaning in favor of the plaintiff. Kirk argues that

this prospective juror was properly placed on the jury because

when questioned by both the district court and counsel whether he

could render a fair and impartial verdict, the prospective juror

responded in the affirmative.

We are troubled by the fact that a district judge,

despite assurances of impartiality, allowed a prospective juror

to serve in a mesothelioma case when the juror's background

raised serious questions as to his ability to serve impartially.0
0
Relevant portions of the voir dire of prospective juror # 251
are as follows:

Juror 251: Well, two uncles had cancer, they were mechanics.
Our union did a study on their members. I am a
mechanic, and it was like 97 percent of them
tested had some problem with asbestos. I have
eaten a lot of it over the years brakes, clutches
up until gets in the air hose, blows it out, you
spit black dirt for two days.
. . . .

Mr. Kristal (counsel for Kirk): Do you think that will affect
your ability to listen to the

8
 evidence and be fair to both
sides in this case?

Juror 251: Well I could only try to be fair is all I could
say. I guess in a way I got to be a little one
way, I'm probably high on the priority list
myself. I've been a mechanic since 1957, up until
when they stopped using it, you know, you took a
clutch out of a truck, hit it with the air hose
and the whole shop is black.
. . . .

Mr. Kristal: If I didn't prove my case, or show that Mr. Kirk
didn't have asbestos disease or I was unable to
show Owens-Corning Fiberglas was liable,
would you be able to return a verdict against my
client?

Juror 251: I wouldn't have any problems at all.

Mr. Kristal: [I]f I had proven the case, would you be able to
find in favor of my client?

Juror 251: I might lean the other way because I have been
there. I know a lot of members who have been down
that road, you know.

Mr. Kristal: Can you put [your past experience with asbestos]
behind you and decide this case on what you hear
in the courtroom from the witness stand and follow
the Court's instructions?

Juror 251: I believe I could.

Mr. Hewitt (counsel for Owens-Corning): Your two uncles had

cancer?

Juror 251: Yes.

Mr. Hewitt: Do you believe those cancers were related to
asbestos?

Juror 251: I don't know. They both had lung cancer.

Mr. Hewitt: Were they around asbestos?

Juror 251: Mechanics the same as I am, both smoke, so it's
anybody's guess.

9
App. 68-70.

The Court: He thinks he has asbestos coursing through his
system.
. . . .

The Court: I just want to clarify in my own mind, you have
been exposed to the brake linings and flakes from
brake linings?

Juror 251: Yes.

The Court: For many years now?

Juror 251: Yes, sir.

The Court: And you think that probably asbestos fibers made
their way in through your own system because when
you had the air hose --

Juror 251: You see our Local, I am a member of the Local, and
when all this asbestos problem came out, the Union
started testing some of the older members. It was
like they finally knocked it off like 97 percent
of the people tested, tested positive for
asbestos. And back then, we didn't know nothing
about it. You took brakes off the truck, took the
air hose blew it off, disk, clutch, all asbestos,
and I said yesterday, I probably had eaten a
couple of pounds of it, and I have never been
tested for it, but I have been subject to it.

The Court: If you are on this case you would be deciding
certain questions, concerning somebody who died of
asbestos exposure, how much money to award. Do
you think because of your own personal experience
perhaps to a certain extent because of your
uncles, you are not sure of the cause of the
death, whether cigarettes or something to do with
asbestos, do you think you could be fair or would
you be inclined --

Juror 251: Like I said, most of what I seen has been against
it. I would have to sit and listen to the case.
If the one attorney can prove that it wasn't, I
could handle that. But at this point right now I
only know the one side of it.

The Court: The way it's going to be, the plaintiff has the
burden of proof, not the defendant. And do you

10
Specifically, we note the following facts which raise substantial

questions of the potential bias of juror #251: (1) during the

course of his work history he had "probably eaten a couple of

pounds of [asbestos]"; (2) he was a union shop steward for 35

years and received one-sided literature from the union regarding

asbestos; (3) he believed that 97% of the older workers in his

local union had tested positive for asbestos in their system; (4)

he had two uncles who died of lung cancer and although they were

think you could decide the case fairly or do you
think because of your own personal experiences you
would be sort of caught up in it and tend to favor
the plaintiff?

Juror 251: I think I could do it fairly. I have been a shop
steward for 35 years. Lots of time I have to go
against the company. That didn't sit too well but
I think I could sit and listen to the facts.
. . . .

Juror 251: I think I could weed through it. Most of the
information I have has been from the side of the
Union coming with the asbestos. And really, it's
a one-sided argument.
. . . .

Mr. Hewitt: I think you indicated earlier that you would lean
a little --

Juror 251: Well, at this point I would have to be [a] liar if
I said to you -- the facts that I had lean in
favor of the possibility or the possibility of it
happening. I haven't really had any, a lot of
facts thrown to me, where it is not, and like I
said, I would have to hear what they have to say,
and determine from that. I just can't crystal-
ball, say this gentleman is going to convince me
that the client, his client did die from it. I
just have to listen to the facts, and just
understand all the facts that I had about it have
been the negative, from your standpoint, so I
would have to weed out one or the other.

App. at 76-79.

11
cigarette smokers, they had been exposed to asbestos during the

course of their work lives; (5) he admitted in the first instance

that he was leaning in favor of the plaintiff and against the

asbestos company; (6) he believed that he was "probably high on

the priority list" of getting an asbestos-related disease

himself; and (7) he knew "a lot of [union] members" who

presumably had asbestos-related medical problems.

Owens-Corning next argues that prospective juror #45

should have been struck for cause because he had responded to the

jury questionnaire that he could not be fair and later repeated

at voir dire that he would have a difficult time being fair to

the defendant. Kirk counters by pointing out that when further

questioned by the district court as to whether he could render a

fair and impartial verdict, the prospective juror responded in

the affirmative.0 Again, we are troubled because the second

0
Relevant portions of the voir dire are as follows:

The Court: In this case, sir, if you are on this jury can you
well and truly try the case based on the evidence
as it comes forth from the witness stand and not,
with all respects [sic] to the media, based on TV,
or radio or newspapers and all of that? Do you
think you could do that, sir?

Juror 45: Yes, I believe so, because it's possible it could
be slanted one way or the other.
. . . .

The Court: So you answered that you could not be fair to
companies that made, distributed, supplied and/or
installed asbestos-containing products, what do
you mean by that?

Juror 45: Basically I feel it's sort of immoral to knowingly
produce something you know is going to cause a
problem.

12
prospective juror: (1) stated in the jury questionnaire that he

could not be fair to companies that made, distributed, supplied

and/or installed asbestos-containing products; (2) felt it was

immoral to produce asbestos if the company knew it was going to

cause a problem; and (3) indicated that he could not be fair to

The Court: Do you think it's immoral -- I am not saying this
is the case -- to produce something when they
don't know anything is wrong with it, they don't
know but it turns out later there is something
wrong with it?

Juror 45: I feel if they do find out it should be corrected.
. . . .

The Court: [D]o you think you could be fair?

Juror 45: Yes.

Mr. Hewitt: One question, if the evidence is that Owens
Corning knew that asbestos was hazardous would you
have a tough time giving them a fair shake?

Juror 45: Yes, I would.

The Court: What do you mean by giving them a fair shake?
Would you have a tough time coming up with a
verdict in their favor if you know the [sic] under
the evidence and the law they are liable?

Juror 45: Well --

The Court: I would tell you if it comes in, if the evidence
and the law did not demonstrate that the plaintiff
proved their [sic] case, I am not saying that is
not being fair to the defendant, you are being
fair, just as you would be fair to the plaintiff
if after fairly considering the evidence you find
there's not a case made out, you would
nevertheless find against her, you are abiding by
your oath as a juror.

Juror 45: Whatever you say, yes.

App. at 64-66.

13
the defendant if the evidence indicated that Owens-Corning knew

that asbestos was hazardous. Only after being repeatedly asked

if he could be fair, the juror answered, "Whatever you say, yes."

Recently, we had the opportunity to decide a similar

case involving a challenge to a district court's refusal to

remove several jurors for cause. Polan, 970 F.2d at 1284. In

that case, which involved a prosecution for conspiracy to

distribute and the distribution of illegally prescribed drugs,

counsel for the defendant challenged for cause three prospective

jurors who revealed during voir dire that either they or members

of their families were victims of drug abuse. Id. Juror #1

revealed that one of his brothers had died of a drug overdose and

another brother had served a lengthy prison term for drug

offenses. Id. n.2. Juror #2 indicated that she had become

dependent upon tranquilizers after experiencing a family tragedy.

Id. Juror #3 revealed that his son had abused alcohol and drugs

in the past. Id. However, all three prospective jurors

ultimately assured the court that their past experiences would

not affect their decision making and that they would be fair and

impartial. After reviewing the record of the voir dire, we

concluded that the district court did not abuse its discretion in

refusing to strike those prospective jurors. Polan, 970 F.2d at
1284.

We find that Polan is distinguishable from the case

before us. In Polan, the defendant wanted the prospective jurors

removed presumably because he believed that some of their past

experiences would make them more likely to vote for conviction.

14
With regard to juror #1, we gave little weight to the theory that

an individual whose one brother died of a drug overdose and whose

other brother served a prison sentence for drug offenses would be

more likely to convict a criminal defendant charged with drug

distribution. With regard to juror #2, we were not convinced

that a person who became dependent on sedatives after the shock

of a family tragedy would be more likely to convict an individual

accused of distributing drugs. Finally, with regard to juror #3,

we gave little credence to the notion that a father who endured

his son's alcohol and drug problems would be biased in favor of

the prosecution. Thus, when the district court in Polan credited

the assurances of the three prospective jurors, it implicitly

made two findings: (1) that the jurors were telling the truth and

(2) despite the experiences and personal biases of the jurors,

they could be fair and impartial, precisely because their past

experiences and personal biases did not make them more likely to

convict the defendant.

Here, Owens-Corning objected to jurors #251 and #45

being seated on the jury because it believed that their personal

biases regarding asbestos and asbestos companies would make them

more likely to return a finding of liability and a large damage

award against Owens-Corning. Unlike the defendant in Polan,
Owens-Corning's fear, that the prospective witnesses' past

experiences and personal biases would affect their decision, was

well-founded.

Juror #251 inhaled a considerable amount of asbestos,

knew people who were suffering from asbestos-related diseases,

15
and thought himself likely to succumb to some asbestos-related

disease in the future. Thus, there was good reason to conclude

that he would be more likely to return a large damage award

because he sympathized with the plaintiff. See Gumbs v. Pueblo

International, Inc., 823 F.2d 768, 773 (3d Cir. 1987) ("[A]

jur[or] may not abandon analysis for sympathy for a suffering

plaintiff and treat an injury as though it were a winning lottery

ticket."). It is difficult to conceive of a juror who would be

more partial to this plaintiff than juror #251. Because juror

#251's background is replete with circumstances which would call

into question his ability to be fair to an asbestos manufacturer,

we find that the district judge should have removed this juror

for cause.

Juror #45 stated that he was biased against asbestos

companies and felt it was immoral knowingly to produce harmful

and defective products. The danger existed that this juror would

return a verdict of liability against Owens-Corning even if

Owens-Corning's products were not responsible for the decedent's

injuries. We can think of few admissions more compelling in

asbestos litigation than a prospective juror who acknowledges

that he would have moral qualms about being fair to an asbestos

manufacturer.

We conclude that juror #45 and especially juror #251

could not serve fairly and impartially in light of their past

experiences and personal biases. The district court relied too

heavily on the jurors' assurances of impartiality, and therefore

abused its discretion. A district court's refusal to excuse a

16
juror will not automatically be upheld simply because the

district court ultimately elicits from the prospective juror that

he will be fair and impartial, despite earlier statements or

circumstances to the contrary. The application of Owens-Corning

to dismiss these two jurors for cause should have been granted.

B. Peremptory Challenges

Because the district court refused to strike these

jurors for cause, Owens-Corning exercised two of its three

peremptory strikes to remove these two prospective jurors from

the jury. Federal law provides that "[i]n civil cases, each

party shall be entitled to three peremptory challenges." 28

U.S.C. § 1870. We must now decide whether: (1) the defendant has

waived any claim that there was a violation of a statutory right

to exercise peremptory challenges; (2) a denial or impairment of

the exercise of peremptory challenges occurs if the defendant

uses one or more challenges to strike jurors who should have been

removed for cause; and (3) a per se reversal is the appropriate

remedy for such impairment or whether the defendant must also

make a showing of prejudice.

1. Waiver

Kirk argues that we may not now consider on appeal

Owens-Corning's contentions that there was a violation of the

statutory right to exercise peremptory strikes because the claim

17
was not properly preserved in the trial court.0 We have

previously held that "[i]t is well established that failure to

raise an issue in the District Court constitutes waiver of the

argument." Brenner v. Local 514, United Brotherhood of

Carpenters, 927 F.2d 1283, 1298 (3d Cir. 1991).

Owens-Corning made the following argument before the

district court in support of its motion for a new trial:
[T]he district court is compelled to excuse a
potential juror when bias is discovered
during voir dire, as the failure to do so may
require the litigant to exhaust peremptory
challenges on persons who should have been
excused for cause. This result, of course,
extinguishes the very purpose behind the
right to exercise peremptory challenges. U.S.
v. Daly, 716 F.2d 1499, 1507 (9th Cir. 1983)
[citing United States v. Allsup, 566 F.2d 68,
71 (9th Cir. 1977); United States v. Nell,
526 F.2d 1223, 1229 (5th Cir. 1976)].

Brief of Owens-Corning in Support of its Motion for a New Trial

at 3.0 In Daly, the Court of Appeals for the Ninth Circuit

additionally stated that "[s]uch an infringement, if it causes a

0
Alternatively, Kirk maintains that to the extent this issue was
not waived, the argument must fail on the merits because Owens-
Corning failed to show that the jury was not impartial. We will
address this argument below. See infra part II.B.3.
0
In Allsup, the court noted that impairment of the right to
exercise peremptory challenges is usually deemed to be
prejudicial error, without a showing of actual prejudice. 566
F.2d at 71 (citing Swain v. Alabama, 380 U.S. 202, 219, 85 S. Ct.
824, 835 (1965)). In Nell, the court stated "it is error for a
court to force a party to exhaust his peremptory challenges on
persons who should be excused for cause, for this has the effect
of abridging the right to exercise peremptory challenges." 526
F.2d at 1229 (citing Swain). Although Kirk later argues that
Swain is no longer good law (and reliance on it is improper), at
this stage of the inquiry we are not deciding the issues raised
on the merits, but are simply ascertaining whether Owens-Corning
has preserved this argument for appeal.

18
prejudicial diminution of peremptory challenges, constitutes

reversible error." Daly, 716 F.2d at 1507 (citing Hines v.

Enomoto, 658 F.2d 667, 672 (9th Cir. 1981), cert. denied, 463

U.S. 1211, 103 S. Ct. 3545 (1983); Allsup, 566 F.2d at 71; United

States v. Boyd, 446 F.2d 1267, 1275 n.27 (5th Cir. 1971)). We

believe that Owens-Corning's reference to Daly during the course

of its argument to the district court properly preserved for

appeal the argument that impairment of a peremptory strike

requires reversal. Although Owens-Corning never specifically

articulated that the impairment of a peremptory strike was a

statutory violation, we are of the opinion that raising the

question of the appropriate remedy for the impairment of

peremptory challenges fairly places before us the question of

whether a statutory right to peremptory challenges has been

violated.

2. Denial or Impairment of Peremptory Challenges

We must next decide whether a denial or impairment of

the exercise of peremptory challenges occurs if a defendant

expends or wastes a peremptory challenge to strike a juror who

should have been removed for cause. The Supreme Court

specifically declined to decide this issue in Ross v. Oklahoma,
487 U.S. 81, 108 S. Ct. 2273 (1988), stating, "we need not decide

the broader question whether, in the absence of Oklahoma's

limitation on the `right' to exercise peremptory challenges, `a

denial or impairment' of the exercise of peremptory challenges

occurs if the defendant uses one or more challenges to remove

19
jurors who should have been excused for cause."0 Id. at 91 n.4,

108 S. Ct. at 2280 n.4. We do not believe this to be a difficult

issue. Here, the district court failed to strike two jurors who

were challenged for cause, and we determine that this failure was

error. In order to ensure that these two prospective jurors who

exhibited prejudice did not serve on the jury, Owens-Corning

utilized two peremptory strikes. We hold that compelling a party

to use any number of its statutorily-mandated peremptory

challenges to strike a juror who should have been removed for

cause is tantamount to giving the party less than its full

allotment of peremptory challenges. Because 28 U.S.C. § 1870

requires that each party shall be entitled to three peremptory

challenges, "a denial or impairment" of that statutory right

occurs whenever a party exercises a peremptory challenge to

strike a prospective juror who should have been removed for

cause. Here, Owens-Corning's statutory right to three peremptory

challenges was impaired.

3. Remedy

Relying on Swain v. Alabama, 380 U.S. 202, 85 S. Ct.

824 (1965), overruled on other grounds by Batson v. Kentucky, 476

U.S. 79, 106 S. Ct. 1712 (1986), Owens-Corning argues that the

impairment or denial of the statutory right to exercise

0
In Ross, the Court observed that under Oklahoma law, a party is
required to expend a peremptory strike in order to preserve for
appeal a challenge to the trial court's refusal to remove that
juror for cause. 487 U.S. at 89, 108 S. Ct. at 2279. There is
no analogous requirement under federal law.

20
peremptory challenges requires the common law remedy of per se

reversal. The common law remedy of per se reversal has a long

history and tradition in our judicial system. As early as the

1890's, the Supreme Court held in Gulf, Colorado & Santa Fe Ry.

Co. v. Shane, 157 U.S. 348, 15 S. Ct. 641 (1895), that to

"impanel a jury in violation of law, and in such a way as to

deprive a party of his right to peremptory challenge, constitutes

reversible error." Id. at 351, 15 S. Ct. at 642. In Shane, a

civil defendant claimed that the trial judge committed error by

failing to adhere to an Arkansas statute that provided each party

three peremptory strikes to be used on a list of eighteen

prospective jurors. Because the trial judge confined the right

to exercise peremptory challenges to only twelve prospective

jurors, the Supreme Court concluded, without a showing of

prejudice, that the trial court violated the statute. Id.

Similarly, in Harrison v. United States, 163 U.S. 140, 16 S. Ct.

961 (1896), a criminal defendant argued that the trial judge

erred in allotting him only three peremptory strikes, instead of

the ten to which he was entitled under a federal statute. Because

the defendant wanted to exercise five additional peremptory

strikes, but was precluded from so doing, the Supreme Court

reversed, observing that "[i]f [the defendant] was entitled to

ten peremptory challenges, five persons unlawfully took part as

jurors in his conviction." Id. at 141, 16 S. Ct. at 961. Again,
the Court did not require a showing of prejudice for this

statutory violation. See also Lewis v. United States, 146 U.S.
370, 375-77, 13 S. Ct. 136, 138 (1892) (statutory right provided

21
by Arkansas law requiring defendant to be present during the

exercise of peremptory strikes was violated, thus requiring per

se reversal). Swain continued the tradition of these cases.0

Kirk maintains that Batson has overruled Swain in its

entirety, and that Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273

(1988), requires a specific showing of prejudice -- that the jury

0
Kirk cites to a case from the same era, Hopt v. People, 120 U.S.
430, 7 S. Ct. 614 (1887), which she claims Owens-Corning concedes
stands for the proposition that "an erroneous denial of [a]
challenge for cause does not constitute reversible error if the
party is not prejudiced." Plaintiff/Appellee's Rehearing Reply
Brief at 10 (June 12, 1995) (emphasis in original) (citing
Supplemental Brief of Appellant at 4 (June 6, 1995)). We are
troubled by Kirk's argument. First, Owens-Corning does not
concede that a party must show prejudice (i.e., a biased jury) in
order for reversal to occur. Rather, Owens-Corning states that
there can be no per se reversal unless the party proves that a
peremptory strike has been impaired. See Supplemental Brief of
Appellant at 4 (June 6, 1995) (arguing there can be no per se
reversal unless the party is prejudiced by "having to `waste' its
peremptories on biased veniremembers.")
Second, Hopt does not stand for such a proposition. In
Hopt, the defendant argued that the trial judge made several
errors in ruling on the competency of four jurors. The trial
judge denied all four challenges for cause. However, the
district attorney removed one juror peremptorily and the
defendant removed two jurors with peremptory strikes. The
remaining juror was permitted to sit on the jury, but the Supreme
Court ruled that the trial judge did not err in denying this
challenge for cause. With regard to the two jurors who were
struck by the defendant, the Supreme Court concluded that
assuming arguendo that the trial judge erred in refusing to
strike two jurors for cause, there was no injury to the defendant
because he utilized less than thirteen of the fifteen peremptory
challenges provided by Utah statute. Id. at 436, 7 S. Ct. at
617. As noted in part II.B.2 supra, in order to be entitled to
per se reversal, a party must first show its statutory right to
peremptory strikes was denied or impaired. Because Hopt still
had at least one peremptory strike remaining which he failed to
use on the remaining juror, he failed to prove an impairment.

22
who actually sat was not impartial -- before reversal is

required.0

In Swain, a black defendant raised a challenge to the

prosecution's use of peremptory challenges to strike six black

prospective jurors from the petit jury venire. The Supreme Court

announced a general rule that "[t]he denial or impairment of the

right [to exercise peremptory challenges] is reversible error

without a showing of prejudice." Swain, 380 U.S. at 219, 85 S.

Ct. at 835 (citing Lewis v. United States, 146 U.S. 370, 13 S.

Ct. at 136; Harrison v. United States, 163 U.S. 140, 16 S. Ct.

961; Gulf, Colorado & Santa Fe Ry. Co. v. Shane, 157 U.S. 348, 15

S. Ct. 641). In addition, the Swain Court held that striking

black members of the petit jury venire does not violate the law,

id. at 221, 85 S. Ct. at 836, a determination which has since

been conclusively overruled in Batson v. Kentucky, 476 U.S. 79,

106 S. Ct. 1712 (1986). See Batson, 476 U.S. at 89, 106 S. Ct.

0
We understand Kirk to be making two separate arguments. First,
Kirk asserts that assuming arguendo Owens-Corning has raised a
claim of violation of a Seventh Amendment right to an impartial
jury, this argument must fail on the merits because defendant did
not object to the jury that was ultimately seated. We need not
address this point because Owens-Corning does not rely on any
claim that the jury that decided this case was not impartial.
See Supplemental Brief of Appellant at 10 (June 6, 1995) ("Owens-
Corning obviously cannot argue that it has been deprived of any
Sixth Amendment right, nor has it asserted any analogous right
under the Seventh Amendment.") (footnote omitted); Reply Brief of
Defendant/Appellant at 5 n.3 (June 13, 1995) ("Owens-Corning does
not claim that the jury that decided this case was not impartial,
nor does Owens-Corning rest its entitlement to a new trial on the
Seventh Amendment right to an impartial jury.").
Second, as we discuss below, Kirk maintains that Ross'
requirement of showing jury impartiality should apply to
statutory, as well as constitutional, claims of impairment of
peremptory challenges.

23
at 1719 ("[T]he Equal Protection Clause forbids the prosecutor to

challenge potential jurors solely on account of their race . . .

."). Batson removed a prosecutor's unbridled discretion to

exercise peremptory challenges when the Equal Protection Clause

is violated. However, Batson did not reach the situation where

the Equal Protection Clause is not implicated. Indeed, Batson

did not overrule the portion of Swain which held that denial or

impairment of a peremptory strike is per se reversible error.

Stated differently, if the prosecutor does not exercise

peremptory strikes on the basis of race,0 an impairment of that

statutory right to exercise peremptory challenges requires per se

reversal.

Notwithstanding the conclusion that the per se reversal

requirement of Swain survives after Batson, Kirk contends that a

0
In recent years the Supreme Court has recognized additional
circumstances under the Equal Protection Clause in which a trial
judge may interfere with a party's exercise of peremptory strikes
without the consequence of per se reversal. See Powers v. Ohio,
499 U.S. 400, 415, 111 S. Ct. 1364, 1373 (1991) (under Equal
Protection Clause, prosecutor may not exercise peremptory strikes
on the basis of race and criminal defendant may object to race-
based exclusion of jurors effected through peremptory challenges
whether or not defendant and excluded jurors share the same
race); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 616, 111
S. Ct. 2077, 2080 (1991) (race-based exercise of a peremptory
challenge by a private litigant in a civil lawsuit violates equal
protection rights of the challenged jurors); Georgia v. McCollum,
505 U.S. 42, __, 112 S. Ct. 2348, 2359 (1992) (Equal Protection
Clause prohibits a criminal defendant from engaging in racial
discrimination in the exercise of peremptory strikes); J.E.B. v.
Alabama Ex. Rel. T.B., __ U.S. __, __, 114 S. Ct. 1419, 1422
(1994) (Equal Protection Clause forbids the exercise of
peremptory challenges on the basis of gender as well on the basis
of race). Nevertheless, because the case before us does not
involve any of these situations implicated by the Equal
Protection Clause, a per se reversal would still be required
under the dictates of Swain.

24
more recent Supreme Court case, Ross v. Oklahoma, 487 U.S. 81,

108 S. Ct. 2273 (1988), abolished the per se reversal remedy in

requiring the party seeking reversal to demonstrate that the jury

actually seated was not impartial. In Ross, the petitioner

argued that the failure of the trial court to strike a juror for

cause and his subsequent "wasting" of a peremptory strike

resulted in a violation of his Sixth and Fourteenth Amendment

right to an impartial jury, and his Fourteenth Amendment right to

due process. Ross, 487 U.S. at 85, 108 S. Ct at 2277. As an

initial matter, the Supreme Court noted that none of the jurors

who actually sat and decided the case were challenged for cause

by defense counsel. Id. at 84, 108 S. Ct. at 2276. Additionally,

there was nothing in the record to suggest that any juror who

actually sat was not impartial. Id. at 86, 108 S. Ct. at 2277.

Moreover, the Court observed that any claim that the jury was

biased must focus not on the challenged juror who was removed via

the exercise of a peremptory strike, but rather on the jurors who

ultimately sat. Id. The Supreme Court held:
[The defendant] was undoubtedly required to
exercise a peremptory challenge to cure the
trial court's error. But we reject the
notion that the loss of a peremptory
challenge constitutes a violation of the
constitutional right to an impartial jury. We
have long recognized that peremptory
challenges are not of constitutional
dimension. They are a means to achieve the
end of an impartial jury. So long as the
jury that sits is impartial, the fact that
the defendant had to use a peremptory
challenge to achieve that result does not
mean the Sixth Amendment was violated. We
conclude that no violation of [the

25
 defendant's] [constitutional] right to an
impartial jury occurred.

Id. at 88, 108 S. Ct. at 2278 (emphasis added) (citations and
footnote omitted).

In reaching the question of whether the defendant's

Fourteenth Amendment right of due process was violated, the Court

observed:
Because peremptory challenges are a creature
of statute and are not required by the
Constitution, it is for the State to
determine the number of peremptory challenges
allowed and to define their purpose and the
manner of their exercise. As such, the
"right" to peremptory challenges is "denied
or impaired" only if the defendant does not
receive that which state law provides.

Id. at 89, 108 S. Ct. at 2279 (citations omitted). Under

Oklahoma law, a defendant who disagrees with a trial court's

ruling on a challenge for cause is required to exercise a

peremptory challenge to remove the juror, or else the defendant

waives the right to object on appeal. Id. Further, reversal is

mandated only if the party exercises all of its peremptory

strikes and an incompetent juror sits on the jury. Id.

Ultimately, the Court concluded, "[a]s required by Oklahoma law,

[the defendant] exercised one of his peremptory challenges to

rectify the trial court's error . . . . But he received all that

Oklahoma law allowed him, and therefore his due process challenge

fails." Id. at 91, 108 S. Ct. at 2279-80. Thus, Ross holds that

there is no constitutional violation mandating reversal unless a

party can show that the jury was not impartial. Ross is not

controlling, however, because Owens-Corning alleges a statutory,

not a constitutional, injury.

26
 Additionally, quite recently, we have spoken on this

issue in a similar case. In United States v. Ruuska, 883 F.2d

262 (3d Cir. 1989), the defendant argued on direct appeal that

his right to exercise a peremptory challenge was impaired, thus

requiring a new trial. In that case, the defendant was granted

an additional peremptory strike, but was later precluded from

exercising this strike. The government argued that any error was

harmless because a substantial right of the defendant was not

affected, that is, the jury that ultimately sat was not

impartial. We rejected the government's invitation to perform a

harmless error analysis. Rather, we acknowledged that the right

to peremptory challenges is a statutory, rather than a

constitutional privilege, and that peremptory challenges may be

"`withheld altogether without impairing the constitutional

guaranties of an "impartial jury" and a fair trial.'" Id. at 268

(quoting Frazier v. United States, 335 U.S. 497, 505 n.11, 69 S.

Ct. 201, 206 n.11 (1948)) (emphasis added). We interpreted "the

long line of Supreme Court authority that culminated with Swain

to say that the denial or impairment of the right to peremptory

challenges is reversible error per se." Id. (quoting Swain)

(citations omitted). Though we did not explicitly mention Ross,

we think it clear that we were distinguishing the case at bar

from those cases where a constitutional injury has been alleged.

Thus, a showing of prejudice is not required to reverse a verdict

after demonstrating that a statutorily-mandated, peremptory

challenge was impaired. See also 9A Charles A. Wright and Arthur
R. Miller, Federal Practice and Procedure § 2483, at 124 (1995)

27
("The denial or impairment of the right [to peremptory

challenges] is reversible error without a showing of specific

prejudice.") (citing Swain, 380 U.S. at 219, 85 S. Ct at 835;

Gulf, Colorado & Santa Fe Ry. Co. v. Shane, 157 U.S. 348, 15 S.

Ct. 641 (1895); Carr v. Watts, 597 F.2d 830 (2d Cir. 1979);

Kiernan v. Van Schaik, 347 F.2d 775 (3d Cir. 1965)).

We do not stand alone in holding that the denial or

impairment of a peremptory strike requires per se reversal. In

United States v. Cambara, 902 F.2d 144 (1st Cir. 1990), the

defendant argued that he was unfairly forced to expend a

peremptory challenge to strike a juror who should have been

excused for cause. Id. at 147. In that case, the defendant was

entitled by statute to exercise ten0 peremptory strikes and the

district court awarded an additional two challenges for a total

of twelve. The defendant had exhausted all twelve of his

peremptory challenges, but he was not forced to expend one of the

ten to which he was entitled under statute. Instead, he was

forced to waste one of the two additional strikes. Although the

Court of Appeals for the First Circuit held that impairment of an

additional peremptory challenge does not violate any rights of
the defendant, the court recognized that "restricting a

defendant's use of the lawful number of peremptory strikes is

reversible error if a challenge for cause is erroneously denied."

Id. at 147-48 (citations omitted). See also Carr v. Watts, 597

0
Pursuant to Rule 24 of the Federal Rules of Criminal Procedure,
"[i]f the offense charged is punishable by imprisonment for more
than one year . . . the defendant [is entitled] to 10 peremptory
challenges." Fed. R. Crim. P. 24(b).

28
F.2d 830, 833 (2d Cir. 1979) (error in denying challenge for

cause that compels unnecessary use of peremptories is reversible

error);0 United States v. Rucker, 557 F.2d 1046, 1049 (4th Cir.

1977) (erroneous refusal to excuse a juror for cause constitutes

reversible error despite defendant's use of peremptory challenge

where district court's error reduced number of peremptory

challenges); United States v. Nell, 526 F.2d 1223, 1229 (5th Cir.

1976) (same) (citing Swain).0

Furthermore, some post-Ross cases from other courts of

appeals, while not concluding that a per se reversal is mandated,

have recognized that Ross only speaks to constitutional

challenges and does not necessarily control non-constitutional or

statutory errors. In United States v. Beasley, 48 F.3d 262 (7th

Cir. 1995), the district court refused to remove three challenged

jurors for cause, whereupon the defendant exercised two of his

ten remaining statutorily-mandated peremptory strikes to remove

two of the jurors. The defendant then objected to the seating of

the third juror. The Court of Appeals for the Seventh Circuit

ultimately concluded that the district court did not abuse its

discretion in failing to strike the three jurors for cause.

However, the Beasley court did note that because the peremptory
strikes were designated as a matter of federal law, it could be

0
As in the case at bar, the party in Carr argued that the
district court impermissibly impaired its statutory right under
28 U.S.C. § 1870 to the exercise of three peremptory challenges.
Id. at 831.
0
We acknowledge that some of these cases were decided prior to
Ross. However, because Ross is distinguishable, we believe that
reliance on pre-Ross cases is not inappropriate.

29
argued that a district court's erroneous refusal to strike a

juror for cause would deprive the defendant of a statutory

peremptory challenge. Id. at 268 n.5. Additionally, in United

States v. Munoz, 15 F.3d 395 (5th Cir.), cert. denied, __ U.S.

__, 114 S. Ct. 2149 (1994), the district court refused to remove

a juror who was challenged for cause, thus requiring the

defendant to exercise a peremptory strike. Although concluding

that the district court did not abuse its discretion, the Court

of Appeals for the Fifth Circuit observed that Ross applied

constitutional standards in reviewing a state criminal

conviction. It expressed doubt as to whether Ross controls a

case on direct appeal and further noted that reversal may be

proper even though the error alleged at trial was not of

constitutional magnitude. Id. at 398 n.1. The Munoz court

continued, "[w]hile peremptory challenges . . . may not be

constitutionally required, it does not follow that a trial

court's wrongful reduction of the number so provided is not

reversible error on direct appeal." Id.

Kirk argues that all other courts of appeals that have

addressed the constitutional implications of the use of
peremptory challenges, whether raised in habeas corpus

proceedings0 or in direct criminal appeals,0 have limited their

0
The habeas corpus cases are distinguishable because a federal
court may overturn a state judgment only for constitutional
violations. See Callins v. Collins, 998 F.2d 269, 277 (5th Cir.
1993) (requires a showing of prejudice when alleging due process
violation); Bannister v. Armontrout, 4 F.3d 1434, 1443 (8th Cir.
1993) (citing Ross for proposition that one must show prejudice
when alleging a Sixth Amendment violation), cert. denied, __ U.S.
__, 115 S. Ct. 418 (1994); Heath v. Jones, 941 F.2d 1126, 1132-33

30
inquiry and review to the impartiality of the jury selected. We

agree that all courts subsequent to Ross have correctly required

a showing of prejudice in response to an alleged constitutional

error before concluding that reversal is warranted. However,

Kirk has failed to point to a single case from any court of

appeals that recognizes the distinction between constitutional

and statutory violations, and holds that Ross requires a showing

of prejudice for a statutory violation.0 For the reasons stated

(11th Cir. 1991) (in order to prevail on claim of denial of fair
and impartial jury, one must show prejudice), cert. denied, 502
U.S. 1077, 112 S. Ct. 981 (1992); Gaskins v. McKellar, 916 F.2d
941, 948-49 (4th Cir. 1990) (citing Ross for proposition that one
must demonstrate prejudice when alleging a Sixth Amendment
violation), cert. denied, 500 U.S. 961, 111 S. Ct. 2277 (1991).
0
These cases fail to recognize the key distinction between
violation of the constitutional right to an impartial jury and
the deprivation of the federal statutory right to peremptory
challenges. See United States v. Alexander, 48 F.3d 1477, 1483-
84 (9th Cir. 1995) (citing Ross for proposition that one must
show prejudice in order to prevail on a Sixth Amendment claim);
United States v. Mendoza-Burciaga, 981 F.2d 192, 197-98 (5th Cir.
1992) (no constitutional error absent a showing of prejudice),
cert. denied, __ U.S. __, 114 S. Ct. 356 (1993); United States v.
Farmer, 923 F.2d 1557, 1565 (11th Cir. 1991) (same).
0
Although Kirk cites Kotler v. American Tobacco Co., 926 F.2d
1217 (1st Cir. 1990), vacated on other grounds, __ U.S. __, 112
S. Ct. 3019 (1992), reaffirmed, 981 F.2d 7 (1st Cir. 1992), for
the proposition that one must first show prejudice in the context
of a statutory violation, Kotler does not stand for that
proposition. In that case, the court held that absent a showing
that a peremptory strike was impaired or denied, no reversal is
mandated. Id. at 1226-27. We have recognized a similar
requirement, see supra part II.B.2, that is, before one may
receive the remedy of reversal, one must first prove that the
right to exercise peremptory strikes has been denied or impaired.
Additionally, Kirk cites United States v. McIntyre, 997
F.2d 687, 698 n.7 (10th Cir. 1993), cert. denied, __ U.S. __, 114
S. Ct. 736 (1994), for the proposition that a non-constitutional
or statutory violation only requires a harmless error analysis,
and not per se reversal. In that case, the court held that the
district court did not abuse its discretion in failing to excuse
the juror for cause. Id. at 698. In dicta, the court noted that

31
above, we find Ross and other cases dealing with alleged

constitutional errors to be distinguishable from the case at bar.

Finally, Kirk argues that even if the requirement

imposed by Ross of showing jury bias only applies to

constitutional claims, its logic should nonetheless be extended

to any statutory impairment claim, that is, a party should always

be required to show that the jury that actually sat was biased.

We decline to extend Ross in the absence of further guidance from

the Supreme Court. We hold that the remedy for impairment or

denial of the statutory right to exercise peremptory challenges

is per se reversal without any requirement of proving prejudice.

III. Prior Testimony of Out of Court Witness

even if the district court had erroneously denied the challenge
for cause, no reversal was required because the defendant had
failed to show that the jury was impartial. Id. at 698 n.7. To
the extent that this dicta is in tension with our resolution of
this matter, we reject this argument.
Although Kirk did not bring it to our attention, we are
aware of a recent case from the Court of Appeals for the Ninth
Circuit that is at odds with our decision today. In United
States v. Annigoni, __ F.3d __, 1995 WL 338649 (9th Cir. 1995),
the defendant attempted to exercise a peremptory strike against
an Asian male, and the district court denied the strike based on
Georgia v. McCollom, __ U.S. __, 112 S. Ct. 2348, 2357 (1992).
The court concluded that the district court erred in disallowing
the peremptory strike, because there was an insufficient factual
basis from which to conclude that the strike had been motivated
by racial prejudice. Annigoni, 1995 WL 338649, at *4. Turning
to the remedy for such an erroneous denial of a peremptory
strike, the court, in part relying on Ross, concluded that a
"harmless error" analysis rather than per se reversal was
mandated. We respectfully disagree with that decision. Because
Ross does not control the case of a statutory violation, any
reliance on Ross in this context is misplaced.

32
 During the liability phase of the trial, Owens-Corning

offered the expert testimony of Dr. Harry Demopoulos to prove

that the overwhelming majority of asbestos-induced mesotheliomas

are caused by crocidolite asbestos fiber. This testimony

supported Owens-Corning's defense that its product, Kaylo, which

did not contain crocidolite fiber, could not have caused the

decedent's mesothelioma. Over Owens-Corning's objection, Kirk

was permitted to read to the jury the prior trial testimony of

Dr. Louis Burgher from an unrelated New Jersey State Court

asbestos action in 1992. In that case, Dr. Burgher had been an

expert witness for Owens-Corning and testified on cross-

examination that it was possible for mesothelioma to be caused by

chrysotile fibers contaminated with tremolite. Kirk was clearly

attempting to discredit Owens-Corning's defense offered through

Dr. Demopoulos by revealing to the jury that Owens-Corning's

expert witness in a previous case voiced a different and

contradictory opinion as to which asbestos fibers cause

mesothelioma. After the jury returned a verdict in favor of

Kirk, Owens-Corning made a post-trial motion for a new trial

based in part on the alleged admission of hearsay evidence, i.e.,

the prior testimony of Dr. Burgher in an unrelated case. The

district court denied this motion.

Normally, when a new trial is sought by reason of a

district court's alleged error in allowing the introduction of

evidence, we review for abuse of discretion. Lippay v. Christos,

996 F.2d 1490, 1496 (3d Cir. 1993) (citing Link v. Mercedes-Benz,
788 F.2d 918, 921-22 (3d Cir. 1986)). However, where as here the

33
ruling on admissibility of hearsay evidence implicates the

application of a legally set standard, our review is plenary.

Id.; see also United States v. McGlory, 968 F.2d 309, 332 (3d

Cir. 1992).

Owens-Corning argues that the district court erred in

allowing the jury to hear this evidence in light of the fact that

it was hearsay. Although the record is at best vague as to what

the district court's basis was for allowing such testimony, Kirk

attempts to justify its admission under two distinct theories --

either the testimony was not hearsay pursuant to Rule

801(d)(2)(C) of the Federal Rules of Evidence or it was hearsay,

but subject to an exception pursuant to Rule 804(b)(1).0

A. Rule 801(d)(2)(C) of the Federal Rules of Evidence

Kirk first attempts to justify the district court's

admission of the prior trial testimony of Dr. Burgher by arguing

it is an admission by a party opponent since it is a statement by

a person authorized by Owens-Corning to speak concerning

mesothelioma and is thus not hearsay. See Fed. R. Evid.

801(d)(2)(C)0; see also Precision Piping v. E.I. du Pont de

0
Alternatively, Kirk argues that assuming arguendo it was error
to admit the testimony of Dr. Burgher, it was harmless error
because the weight of the medical testimony of Kirk's other
witnesses was overwhelming. In light of our decision to remand
for a new trial because the jury was improperly constituted, we
need not address whether any evidentiary errors may be harmless.
0
Rule 801(d) of the Federal Rules of Evidence states in relevant
part:

(d) Statements which are not hearsay. A statement is
not hearsay if --

34
Nemours, 951 F.2d 613, 619 (4th Cir. 1991) (authority in the

context of 801(d)(2)(C) means "authority to speak" on a

particular subject on behalf of someone else). In her brief,

Kirk argues that Dr. Burgher was authorized by Owens-Corning to

offer his expert opinion about medical literature regarding

mesothelioma and fiber type. Appellee's Brief at 21. At oral

argument, Kirk suggested that the testimony of any expert that

Owens-Corning has previously used in a trial can be used in

future litigation against it as an authorized admission.

In support of this proposition, Kirk cites Collins v.

Wayne Corp., 621 F.2d 777, 782 (5th Cir. 1980), which held that

deposition testimony of an expert employed by a bus manufacturer

to investigate an accident was an admission under 801(d)(2)(C).

However, in that case the court made a finding that the expert

witness was an agent of the defendant and the defendant employed

the expert to investigate and analyze the bus accident. Id. The

court determined that in giving his deposition, the expert was

performing the function that the manufacturer had employed him to

perform. As such, the court concluded that the expert's report

of his investigation and his deposition testimony in which he

explained his analysis and investigation was an admission of the

defendant. Id.; see also Theriot v. J. Ray McDermott & Co.,
Inc., 742 F.2d 877, 882 (5th Cir. 1984) (citing Collins v. Wayne

(2) Admission by party-opponent. The statement is
offered against a party and is . . .
(C) a statement by a person authorized by the party to
make a statement concerning the subject.

Fed. R. Evid. 801(d)(2)(C) (emphasis added).

35
Corp., 621 F.2d 777, 781-82 (5th Cir. 1980)) (explaining that

Collins holds that "an agent's statement, made within the scope

of his authority . . . is admissible against the principal as an

admission").

Kirk misconstrues the entire premise of calling expert

witnesses. In theory, despite the fact that one party retained

and paid for the services of an expert witness, expert witnesses

are supposed to testify impartially in the sphere of their

expertise. Thus, one can call an expert witness even if one

disagrees with the testimony of the expert. Rule 801(d)(2)(C)

requires that the declarant be an agent of the party-opponent

against whom the admission is offered, and this precludes the

admission of the prior testimony of an expert witness where, as

normally will be the case, the expert has not agreed to be

subject to the client's control in giving his or her testimony.

See Sabel v. Mead Johnson & Co., 737 F. Supp. 135, 138 (D. Mass

1990). Since an expert witness is not subject to the control of

the party opponent with respect to consultation and testimony he

or she is hired to give, the expert witness cannot be deemed an

agent. See Restatement (Second) of Agency § 1 cmt. a (1958)
("The relation of agency is created as the result of conduct by

two parties manifesting that one of them is willing for the other

to act for him subject to his control, and that the other

consents so to act.")

Because an expert witness is charged with the duty of

giving his or her expert opinion regarding the matter before the
court, we fail to comprehend how an expert witness, who is not an

36
agent of the party who called him, can be authorized to make an

admission for that party.0 See Michael H. Graham, Federal

Practice and Procedure: Evidence § 6722, at 502 (Interim Edition

1992) (the authority of the agent to speak as to a subject must

be established at trial). We are unwilling to adopt the

proposition that the testimony of an expert witness who is called

to testify on behalf of a party in one case can later be used

against that same party in unrelated litigation, unless there is

a finding that the expert witness is an agent of the party and is

authorized to speak on behalf of that party. Accordingly, we

find Dr. Burgher's prior trial testimony to be hearsay in the

context of the present trial.

B. Rule 804(b)(1) of the Federal Rules of Evidence

Because the testimony of Dr. Burgher is hearsay, we

must next inquire whether it falls within any of the hearsay

exceptions enumerated in the Federal Rules of Evidence. Kirk

argues that Dr. Burgher's testimony falls within the former

testimony hearsay exception of Rule 804(b)(1). In order for

former testimony to be admissible as an exception to the hearsay

rule: (1) the declarant must be unavailable; (2) testimony must

be taken at a hearing, deposition, or civil action or proceeding;

0
In the case before us, unlike Collins, there was no explicit
finding on the record that Dr. Burgher was an agent of the
defendant. To the extent that Collins holds that an expert
witness who is hired to testify on behalf of a party is
automatically an agent of that party who called him and
consequently his testimony can be admitted as non-hearsay in
future proceedings, we reject this rule.

37
and (3) the party against whom the testimony is now offered must

have had an opportunity and similar motive to develop the

testimony by direct, cross, or redirect examination. See Fed. R.

Evid. 804(a)(5), (b)(1).0 Because Dr. Burgher testified in open

court during the state court action, no one disputes that the

second element has been satisfied.

Regarding the first element, we note that it is an

abuse of discretion for a district court to admit former

testimony into evidence under Rule 804(b)(1) without a finding of

unavailability. See O'Banion v. Owens-Corning Fiberglas Corp.,

968 F.2d 1011, 1014 (10th Cir. 1992) (district court abused its

discretion in admitting former testimony of expert where there

0
Rule 804 of the Federal Rules of Evidence states in relevant
part:

(b) Hearsay exceptions. The following are not excluded by the
hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another
hearing of the same or different proceeding, or in a deposition
taken in compliance with law in the course of the same or another
proceeding, if the party against whom the testimony is now
offered, or, in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar motive to develop the
testimony by direct, cross, or redirect examination.

Fed. R. Evid. 804(b)(1) (emphasis supplied).

"Unavailability" is defined in Rule 804 as follows:

(a) Definition of unavailability. "Unavailability as a witness"
includes situations in which the declarant --

(5) is absent from the hearing and the proponent of a statement
has been unable to procure the declarant's attendance . . . by
process or other reasonable means.

Fed. R. Evid. 804(a)(5) (emphasis supplied).

38
was no showing of unavailability). Because there was no finding

on the record as to unavailability, if the district court based

admitting this testimony on Rule 804(b)(1), we hold that the

district court abused its discretion in allowing this former

testimony into evidence.

Normally, our inquiry would end here after determining

that former testimony cannot be admitted absent specific findings

of unavailability. However, because of the likelihood that an

offer may be made during the retrial of this matter to admit this

testimony as former testimony, we believe further discussion is

warranted.

We observe that it is the proponent of the statement

offered under Rule 804 who bears the burden of proving the

unavailability of the declarant. United States v. Eufracio-

Torres, 890 F.2d 266, 269 (10th Cir. 1989), cert. denied, 494

U.S. 1008, 110 S. Ct. 1306 (1990) (citing Ohio v. Roberts, 448

U.S. 56, 65, 100 S. Ct. 2531, 2538-39 (1980)); 2 John William

Strong et al., McCormick on Evidence § 253, at 134 (4th ed. 1992)

("The proponent of the hearsay statement must . . . show that the

witness cannot be found"). We can find nothing in the record

that indicates any "reasonable means" employed by Kirk to procure

the services of Dr. Burgher so that he might testify at trial.

See McCormick § 253, at 134 (mere absence of the declarant,
standing alone, does not establish unavailability); see also

Moore v. Mississippi Valley State University, 871 F.2d 545, 552

(5th Cir. 1989) (deposition inadmissible in civil trial where no

evidence to establish unavailability offered).

39
 Kirk claims that Dr. Burgher, who is a resident of

Nebraska, was beyond her ability to subpoena and was thus

unavailable. See Fed. R. Civ. P. 45(c)(3)(A)(ii).0 However,

Kirk made no independent attempt to contact Dr. Burgher, offer

him his usual expert witness fee, and request his attendance at

trial.0 Because Dr. Burgher was never even as much as contacted,

Kirk has failed to prove that she used "reasonable means" to

enlist his services.

0
Rule 45 of the Federal Rules of Civil Procedure states in
relevant part:

(c) Protection of Persons Subject to Subpoenas.
(3)(A) On timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it --
(ii) requires a person who is not a party or an officer
of a party to travel to a place more than 100 miles from the
place where that person resides, is employed or regularly
transacts business in person . . . .

Fed. R. Civ. P. 45(c)(3)(A)(ii).
0
At oral argument, Kirk argued that it was the responsibility of
Owens-Corning to locate and contact Dr. Burgher and establish his
availability because the district court requested Owens-Corning
to determine whether he would be available to testify. To the
extent that the district court placed the burden on Owens-Corning
to establish the unavailability of Dr. Burgher, the district
court made an error of law in shifting the burden of proof. Kirk
then articulated what we term a "convenience" argument, that is,
she argued that Dr. Burgher was Owens-Corning's expert and Owens-
Corning was in a better position to locate Dr. Burgher because it
had Dr. Burgher's telephone number. To the extent that Kirk is
advocating that Owens-Corning should undertake the task of
locating a witness for Kirk so that she may use that testimony
against Owens-Corning, we reject any such notion. For the same
reasons we protect an attorney's work product from discovery, see
Fed. R. Civ. P. 26(b)(3); Hickman v. Taylor, 329 U.S. 495, 511,
67 S. Ct. 385, 394 (1947) ("Inefficiency, unfairness, and sharp
practices would inevitably develop . . . . The effect on the
legal system would be demoralizing. And the interests of the
clients and the cause of justice would be poorly served."), we do
not believe that Owens-Corning had any duty to assist Kirk in
preparing her case.

40
 We next address whether Owens-Corning had an

opportunity and similar motive to develop the testimony of Dr.

Burgher at the prior unrelated state court trial.0 The

similarity of motive requirement assures "that the earlier

treatment of the witness is the rough equivalent of what the

party against whom the statement is offered would do at trial if

the witness were available to be examined by that party." United

States v. Salerno, 937 F.2d 797, 806 (2d Cir. 1991); see also 2

Steven A. Saltzburg & Michael M. Martin, Federal Rules of

Evidence Manual 400 (5th ed. 1990) ("The way to determine whether

or not motives are similar is to look at the similarity of the

issues and the context in which the opportunity for examination

previously arose.").

There was no finding by the district court that Owens-

Corning had an opportunity and similar motive to examine Dr.

Burgher. Further, during oral argument, counsel for Kirk

indicated that the only document before the district court from

the state court trial was the transcript of Dr. Burgher's

testimony. The district court did not have the complaint,

answer, or jury charge from the state court proceedings. Thus,

even if the district court had attempted to make a finding as to

opportunity and similar motive, it would have been unable to

reach a well-reasoned conclusion based on the information before

0
Again, although we need not reach this issue absent a finding of
unavailability, because of the likelihood that an offer may be
made during the retrial to admit this evidence as former
testimony, we believe further discussion is warranted.

41
the district court.0 See McCormick § 304, at 317 (courts must

look to the operative issue in the earlier proceeding).

Accordingly, we must conclude that Kirk failed to prove that

Owens-Corning had an opportunity and similar motive to examine

Dr. Burgher.

IV. Introduction of Interrogatory of Settled Co-

Defendant

Kirk settled the instant action with Garlock and

several other defendants prior to trial. At trial, Owens-Corning

sought in its cross-claim to prove that the decedent was exposed

to products made by Garlock. If the jury were to conclude that

the decedent's injuries had been caused in whole or part by

exposure to Garlock products, then Owens-Corning could eliminate

or substantially reduce its liability. Conversely, it was in

Kirk's financial interest to prove that the decedent was exposed

to only Owens-Corning products. In an effort to rebut the

testimony of an Owens-Corning witness who testified that Garlock

gaskets were present in the New York shipyard during the years

that the decedent worked there, Kirk read into evidence an

interrogatory response which was prepared and filed by Garlock in

0
For instance, the statement elicited from Dr. Burgher during
cross-examination at the state trial may not have warranted
redirect by Owens-Corning in light of its theory of defense. See
McCormick § 302, at 307 ("Circumstances may differ sufficiently
between the prior hearing and the present trial to bar admission
. . . as where questions on a particular subject would have been
largely irrelevant at the earlier proceeding."). Because we do
not have the pleadings, we cannot determine whether an
opportunity and similar motive existed.

42
defense of this action. Of course, at the time this

interrogatory was read to the jury, Garlock was no longer a party

to this lawsuit. Specifically, counsel for Kirk read the

following statement to the jury:
Since Garlock products are bonded and/or
encapsulated and treated in such a manner
that they do not, when used in the manner for
which they were intended, emit meaningful
levels of asbestos dust and fibers, no
restrictions or limitations on use are
necessary.

App. at 513. In response to Owens-Corning's closing remarks,

counsel for Kirk reminded the jury:
I read you from the Garlock interrogatory,
Garlock product is bonded, encapsulated, it
does not emit dust.

App. at 545.

Owens-Corning argues that the district court erred in

admitting this interrogatory response because the interrogatory

answer was pure hearsay. Kirk attempts to justify the admission

of this interrogatory response under the catch-all or residual

exception, Rule 803(24) of the Federal Rules of Evidence.0 As
0
Rule 803 of the Federal Rules of Evidence states in relevant
part:

The following are not excluded by the hearsay rule, even though
the declarant is available as a witness:
. . .

Other exceptions. A statement not specifically covered by any of
the foregoing exceptions but having equivalent circumstantial
guarantees of trustworthiness, if the court determines that (A)
the statement is offered as evidence of a material fact; (B) the
statement is more probative on the point for which it is offered
than any other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these rules
and the interests of justice will best be served by admission of
the statement into evidence. However, a statement may not be
admitted under this exception unless the proponent of it makes

43
stated previously, our standard of review is plenary where the

admissibility of hearsay evidence "implicates the application of

a legally set standard." See supra part III.

As a preliminary matter, we note that the plain

language of the rule requires the proponent of the hearsay

statement to put the adverse party on notice that the proponent

intends to introduce the statement into evidence. We have

interpreted this to mean that the proponent must give notice of

the hearsay statement itself as well as the proponent's intention

specifically to rely on the rule as a grounds for admissibility

of the hearsay statement. United States v. Pelullo, 964 F.2d

193, 202 (3d Cir. 1992) (citing United States v. Furst, 886 F.2d

558, 574 (3d Cir. 1989)). Even assuming arguendo that Owens-

Corning was on notice that Kirk intended to introduce this

evidence at trial, we observe from the record that Kirk never

gave notice to Owens-Corning that she intended to introduce this

evidence under Rule 803(24). App. at 512. We recognize that the

advance notice requirement of Rule 803(24) can be met where the

proponent of the evidence is without fault in failing to notify

his adversary and the trial judge has offered sufficient time, by

means of granting a continuance, for the opponent to prepare to

contest its admission. See United States v. Bailey, 581 F.2d

known to the adverse party sufficiently in advance of the trial
or hearing to provide the adverse party with a fair opportunity
to prepare to meet it, the proponent's intention to offer the
statement and the particulars of it, including the name and
address of the declarant.

Fed. R. Evid. 803(24) (emphasis added).

44
341, 348 (3d Cir. 1978) (the purposes of the rule and the

requirement of fairness are satisfied under such circumstances).

Because of the lack of notice by Kirk that she intended to rely

on Rule 803(24) and the lack of a showing by Kirk as to why it

was not possible to provide Owens-Corning with notice, the

district court erred in admitting this evidence at trial.

Turning to the substance of the rule itself, we note

that in order for the hearsay statement to be admitted, it must

have "equivalent circumstantial guarantees of trustworthiness."

Fed. R. Evid. 803(24); see also Michael H. Graham, Federal

Practice and Procedure: Evidence § 6775, at 737-39 (Interim

Edition 1992) (factors bearing on trustworthiness include the

declarant's partiality, i.e., interest or bias). Owens-Corning

argues that the interrogatories of Garlock lack trustworthiness

and are self-serving. Kirk submits that the interrogatory

answers are trustworthy because they are signed and sworn under

penalty of perjury.0 We find that an interrogatory response of a

co-defendant who is seeking to avoid liability lacks the

"circumstantial guarantees of trustworthiness" that are

contemplated by Rule 803(24) of the Federal Rules of Evidence.

Garlock had every incentive to set forth the facts in a light

0
There is nothing in the record to indicate that the district
court made any findings as to the reliability of the Garlock
interrogatories. See United States v. Chu Kong Yin, 935 F.2d
990, 1000 (9th Cir. 1991) (requiring specific findings regarding
the requisite elements of Rule 803(24)); United States v.
Tafollo-Cardenas, 897 F.2d 976, 980 (9th Cir. 1990) (district
court must find that the statements met the requirements of the
rule in order for the appellate court to consider the
admissibility of the statement under 803(24)).

45
most favorable to itself, while at the same time still answering

the interrogatories truthfully. See United States v. DeLuca, 692

F.2d 1277, 1285 (9th Cir. 1982) (excluding statement under

residual hearsay exception because of motive to exculpate oneself

after indictment or investigation). Using these interrogatory

responses to prove that Garlock products could not have caused

the decedent's illness without the opportunity for cross-

examination implicates many of the dangers the hearsay rule is

designed to prevent. Accordingly, the district court erred in

admitting this evidence.

V. Delay Damages

Finally, Owens-Corning argues that it was improper as a

matter of law for the district court to award delay damages to

the plaintiff pursuant to Rule 238 of the Pennsylvania Rules of

Civil Procedure because it is a procedural rule and should not be

applied by federal courts sitting in diversity. Owens-Corning

argues in the alternative that even if it is permissible for a

federal court sitting in diversity to award delay damages

pursuant to Rule 238, it was improper here because: (1) the

entire delay was caused by the plaintiff's strategic decision to

file simultaneous federal and state court actions and her failure

to request a remand of the federal action from the multidistrict

docket when settlement negotiations reached an impasse and (2)

the district court miscalculated the damage award in failing to

account for a delay of approximately two years that was caused by

a judicial stay imposed by the Panel on Multidistrict Litigation.

46
Owens-Corning maintains that because it was not responsible for

the delay, it should not be required to pay delay damages for

that period.

A. Rule 238 of the Pennsylvania Rules of Civil
Procedure -- Substantive or Procedural?

First, we must address Owens-Corning's argument that a

federal court sitting in diversity cannot apply Rule 238 of the

Pennsylvania Rules of Civil Procedure because it is a procedural

rather than a substantive rule. Yet, ultimately, Owens-Corning

concedes, as it must, that this question has already been decided

by this Court in Fauber v. Kem Transportation and Equipment Co.,
876 F.2d 327 (3d Cir. 1989). In that case, we held that Rule 238

is substantive and must be followed by federal courts sitting in

diversity cases. Id. at 328. Counsel is thus implicitly asking

this panel to overrule Fauber. We note that this Court's

Internal Operating Procedures prohibit a panel of this Court from

overruling a published opinion of a previous panel. See Internal
Operating Procedure Rule 9.1 ("[T]he holding of a panel in a

reported opinion is binding on subsequent panels."). Because we

are bound by Fauber, and in any event do not question its wisdom,

we reiterate that it is proper for a federal district court

sitting in diversity to award delay damages to a plaintiff under

Rule 238 of the Pennsylvania Rules of Civil Procedure.

B. Did Plaintiff Cause Delay?

47
 Second, Owens-Corning maintains that Kirk was

responsible for the delay because she filed simultaneous federal

and state court actions and additionally failed to make an

application to remand the federal action from the multidistrict

docket when settlement negotiations proved fruitless.

Our review of the applicability of Rule 238 in a

diversity case is plenary. Fauber, 876 F.2d at 329. Rule 238 of

the Pennsylvania Rules of Civil Procedure states in relevant

part:
(a)(1) At the request of the plaintiff in
a civil action seeking monetary relief for .
. . death[,] . . . damages for delay shall be
added to the amount of compensatory damages
awarded against each defendant . . . found to
be liable to the plaintiff in the verdict of
a jury . . . .
(2) Damages for delay shall be awarded
for the period of time
(i) in an action commenced before
August 1, 1989, from the date the plaintiff
first filed a complaint or from a date one
year after the accrual of the cause of
action, whichever is later, up to the date of
the . . . verdict . . . .
(3) Damages for delay shall be
calculated at the rate equal to the prime
rate as listed in the first edition of the
Wall Street Journal published for each
calendar year for which the damages are
awarded, plus one percent, not compounded.
(b) The period of time for which damages
for delay shall be calculated under
subdivision (a)(2) shall exclude the period
of time, if any,
(1) after which the defendant has made
a written offer of
(i) settlement in a specified sum
with prompt cash payment to the plaintiff, or
(ii) a structured settlement
underwritten by a financially responsible
entity, and continued that offer in effect
for at least ninety days or until

48
 commencement of trial, whichever first
occurs, which offer was not accepted and the
plaintiff did not recover by award, verdict
or decision, exclusive of damages for delay,
more than 125 percent of either the specified
sum or the actual cost of the structured
settlement plus any cash payment to the
plaintiff; or
(2) during which the plaintiff caused
delay of the trial.

Pa. R. Civ. P. 238 (1988) (emphasis added).

According to the plain language of the rule, a

defendant must pay delay damages unless the delay falls within

the excludable time as set forth in the rule. Owens-Corning

concedes that it did not make a settlement offer which would

satisfy the rule. Thus, the only other way for the defendant to

be relieved from paying delay damages would be if the plaintiff

caused the delay.

According to Owens-Corning, but for the plaintiff's

strategic decision to file a federal asbestos action, the matter

could have been resolved long ago in state court. Here, Kirk

would have been forced to abandon her remedy in federal court and

seek relief only in the state forum. To adopt the rule of law as

advocated by Owens-Corning, we would be required to hold that

delay is per se attributable to a plaintiff anytime a plaintiff

files a diversity action in federal court when a suitable state

forum exists. Nothing in Rule 238 contemplates that a plaintiff

must forgo any rights in order to be entitled to delay damages,

and we are unwilling to adopt such a proposition.

In support of its argument that Kirk was responsible

for the delay in failing to request a remand from the

49
multidistrict docket, Owens-Corning relies on Babich v.

Pittsburgh & New England Trucking Co., 386 Pa. Super. 482, 563

A.2d 168 (Pa. Super. Ct. 1989). In that case, the plaintiff's

motion for delay damages pursuant to Rule 238 was denied by the

trial court and plaintiff appealed. Babich, 386 Pa. Super. at

487, 563 A.2d at 171. In assessing who was responsible for the

almost seven year delay between the commencement of suit and the

jury verdict, the court observed:
[T]he chief reasons for delay in this case
cannot be attributed to defendants. [One of
the defendants] filed a Chapter 11 bankruptcy
in federal court six months after
[plaintiff's] complaint was filed and
[plaintiff] did not successfully obtain
relief from the automatic stay until
approximately two years and four months later
despite cooperation from counsel for the
bankruptcy and counsel for the insurance
company. The other primary delay in the case
was [plaintiff's] failure to place the case
at issue in a speedy fashion. [Plaintiff]
fails to point to any delay attributable to
defendants and we find none upon review of
the record.

Babich, 386 Pa. Super. at 487, 563 A.2d at 171.

Owens-Corning argues that because Kirk did not seek a

remand from the multidistrict docket, she failed to obtain relief

from the MDL stay just as the plaintiff in Babich failed to
obtain relief from the automatic stay. Owens-Corning's reliance

on Babich is misplaced. In that case plaintiff could have sought

relief and moved the trial along, because opposing counsel was

cooperating with and assisting counsel. Here, however, according

to Judge Weiner's Pretrial Order, the case could be remanded for

trial only if there was a finding that the defendant was acting

50
in bad faith during the settlement negotiations. To the extent

that Owens-Corning is found to have acted in bad faith, this

would militate against a finding that delay was caused by the

plaintiff.

C. Is Delay Not Caused By The Defendant Excludable?

Third, Owens-Corning argues that because the delay was

caused by the MDL Order, it offends traditional notions of fair

play and due process to make a defendant pay for another's delay.

Owens-Corning asks that the award of delay damages be

recalculated and further maintains that it is unconstitutional to

impose delay damages on it for this time period because it was

never acting in bad faith and the delay was caused by the court.

Were we to adopt the rule of law as articulated by Owens-Corning,

we would have to redraft Rule 238(b)(2) to state "during which

the defendant did not cause the delay of the trial," instead of

"during which the plaintiff caused delay of the trial." We are

not so inclined and we find that the plaintiff caused no delay of

the trial.

Owens-Corning also argues that notwithstanding the

language of the rule, requiring it to pay for delay caused by the

judiciary is a violation of due process. Owens-Corning fails to

comprehend the theory underlying Rule 238. Delay damages merely

compensate a plaintiff for money that he or she would have earned

on the award if he or she had promptly received it. Costa v.
Lauderdale Beach Hotel, 534 Pa. 154, 160, 626 A.2d 566, 569 (Pa.

1993). The rule also functions to prevent a defendant from being

51
unjustly enriched by keeping interest that could be earned during

the litigation process on what is essentially the plaintiff's

money. Id. n.6. We find no merit to Owens-Corning's argument

that delay damages violate due process in this instance.

Accordingly, we find no error in the district court's decision to

award delay damages to the plaintiff.

VI. Conclusion

The refusal to remove two jurors who were challenged

for cause was an abuse of discretion. Because the defendant was

required to waste two of its peremptory strikes in order to

remedy this error, a per se reversal is required. Allowing into

evidence the prior testimony of a witness in an unrelated state

court trial was error, as was permitting the introduction into

evidence of an answer to an interrogatory by a settled co-

defendant. Accordingly, we will reverse the judgment of the

district court and remand the matter to the district court for a

new trial. Costs taxed against Kirk.

52