Ball v. Johns-Manville Corp.

JOHNSON, Judge,

concurring and dissenting.

I join in the conclusion of my colleagues that there was clearly sufficient evidence to support the jury’s verdict. I also *394agree that the distinguished trial court, the Honorable Lawrence Prattis, committed no error in refusing to grant judgment notwithstanding the verdict on the loss of consortium claim of the plaintiffs wife.

I also agree that the appellant, Owens-Illinois Glass Company (Owens-Illinois), has completely failed to inform this court of the specific facts and procedural history pertinent to the only other issue on this appeal: whether Judge Prattis erred in denying Owens-Illinois’ request that the jury be charged on comparative liability.

The majority asserts that they cannot accept Owens-Illinois’ contention that all of the names of defendants listed on the special interrogatories should have gone to the jury. Majority at 657. The majority further declares that Judge Prattis was “clearly ... correct in refusing to charge the jury on apportionment.” Id. at 659. I agree with both of these conclusions of my colleagues. I part company from my colleagues as they “attempt to piece together the necessary information [to make Owens-Illinois’ argument] from a record which is far from clear.” Id. at 655.

The majority is correct when it asserts that it is the duty of the appellant to provide this court with a complete record and with all the information and analysis necessary to our decision-making process. Pennsylvania Rule of Appellate Procedure 2117(a)(4) requires that the Statement of the Case in appellant’s brief contain:

(4) A closely condensed chronological statement____of all the facts which are necessary to be known in order to determine the points in controversy, with an appropriate reference in each instance to the place in the record where the evidence substantiating the fact relied on may be found.

Owens-Illinois has not complied with this rule, in terms of their contention relating to apportionment of liability, and the majority concedes as much. Similarly, Pa.R.A.P. 2119(d) suggests that where Owens-Illinois seeks to persuade this court that the trial court erred in not charging the jury as to the liability of all those parties listed on Owens-Illinois’ proposed verdict sheets, the obligation is on Owens-Illinois, at its peril, *395to set forth a synopsis of all the evidence to support that request, with a reference to the place in the record where that evidence may be found. Owens-Illinois has not done that on this appeal.

In its Summary of Argument, Brief and Appendix for Appellant, page 10, Owens-Illinois argues that it “had a right to prove that a settled defendant was a joint tortfeasor in order to reduce its percentage of liability”. I cannot reach this contention because the record contains no evidence whatsoever that Owens-Illinois submitted any evidence which would tend to prove that other defendants were joint tortfeasors.

Russell Ball, as plaintiff, went to trial and submitted sufficient evidence to prove liability against both Owens-Illinois and Keene Corporation. I can locate nothing in the record where either of the defendants actively sought to prove the liability of other corporations during the trial. The majority points out in one of the footnotes to its Opinion that the only other defendant at trial, Keene Corporation, has settled with the plaintiffs and discontinued its appeal. I believe it is inappropriate for this court to fashion an argument for an appellant where that argument has not been properly developed by that appellant in its brief. Moreover, I am unpersuaded that Pennsylvania law requires that a jury be permitted to speculate as to apportionment of damages where no effort has been made by a defendant to particularize the requested relief. Certainly, a trial judge is not required to give a blunderbuss charge which would go well beyond all the evidence offered in a joint liability asbestos case.

I find no error in the denial of the Defendants’ Request(s) for Jury Instructions by Judge Prattis. Accordingly, I must dissent from so much of the decision of the majority as would reverse in part and remand for a new trial limited to certain defendants where the majority has found “sufficient evidence of plaintiffs exposure to their products.” I must also dissent from that portion of the decision of the majority placed in footnote 3 of its Opinion which would attempt to instruct the trial court on what it must do concerning matters which have *396arisen since this appeal was filed. Owens-Illinois does not refer this court to any authority to permit us to attempt such an instruction, and I know of none. I should affirm the judgment in favor of plaintiffs in all respects.