Kirk v. Raymark

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

4-14-1995

Kirk v Raymark
Precedential or Non-Precedential: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
BEFORE: STAPLETON, GREENBERG and COWEN,
Circuit Judges

(Filed April 14, l995 )

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
and KIRK, Sarah A. in her own right

Robert N. Spinelli
W. Matthew Reber (argued)
Kelley, Jasons, McGuire & Spinelli
1617 JFK Blvd.
Suite 1400
Philadelphia, PA 19103

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 the district court

abused its discretion by denying defendant's challenge for cause

of two jurors who allegedly evidenced bias against the defense.

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 that the district court abused its

discretion in denying defendant's challenge for cause of two

jurors during voir dire, we will reverse the judgment of the

district court and remand for a new trial on the issue of damages

and liability.1 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 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").2 Kirk alleged that her
1
. 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.
2
. Of these eight defendants, four were bankrupt at the time of
trial. Of the four remaining defendants, Kirk settled with
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.

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. This application was

denied by the district court. Kirk filed an application for

(..continued)
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.
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 at trial which unfairly prejudiced it during 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. Challenge for Cause of Jurors

Owens-Corning argues that the district court erred in

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

and juror # 45) who defendant argues revealed considerable

potential bias against it during voir dire. 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)).

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
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).

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.3

3
. 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
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
(..continued)
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.

App. 68-70.

The Court: He thinks he has asbestos coursing through his
system.
. . . .
(..continued)
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
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?
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

cigarette smokers, they had been exposed to asbestos during the

(..continued)
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.
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.4 Again, we are troubled because the second

4
. 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.
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
(..continued)
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.
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.
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,
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 it was improper to allow him to serve on the jury.

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

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.

The jury was not fairly and impartially constituted, and

accordingly we will order a new trial.

III. Prior Testimony of Out of Court Witness

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

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).5

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

5
. 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.
 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)6; see also Precision Piping v. E.I. du Pont de

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
6
. 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 --
(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).
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

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

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

admission for that party.7 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.

7
. 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.
 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;

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).8 Because Dr. Burgher testified in open
8
. 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.
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

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

which 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).

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).9 However,

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

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

trial.10 Because Dr. Burgher was never even as much as

9
. 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).
10
. 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
contacted, Kirk has failed to prove that she used "reasonable

means" to enlist his services.

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.11 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.").
(..continued)
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.
11
. 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.
 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

the district court.12 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

12
. 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.
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

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.13 As

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
13
. 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
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).
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

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.14 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

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

14
. 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)).
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.

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?

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
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

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

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 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

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 seating of two jurors in this matter was error, as

was allowing into evidence the prior testimony of a witness in an

unrelated state court trial and permitting the introduction into

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

defendant. We will reverse the judgment of the district court

and remand the matter to the district court for a new trial.

Costs taxed against appellees.