The opinion of the court was delivered by: Nickerson, District Judge.
The trial of this product liability action for wrongful death
and personal injury resulted in a verdict for Mary Kreppein,
the widow and personal representative of the estate of Gustave
Kreppein, on January 18, 1990, against four asbestos products
manufacturers, Owens-Illinois, Inc. (Owens-Illinois), United
States Mineral Products Company (U.S. Mineral), Eagle-Picher
Industries, Inc. (Eagle-Picher), and The Celotex Corporation
(Celotex). The jury awarded actual damages of $731,557.79, and
held Owens-Illinois liable for 5%, U.S. Mineral for 15%,
Eagle-Picher for 27.5%, and Celotex for 32.5% of the total.
Owens-Illinois moves for reconsideration of an earlier
summary judgment motion. All defendants move for judgment
notwithstanding the verdict. In addition, Owens-Illinois,
Celotex and Eagle-Picher move alternatively for a new trial or
Owens-Illinois' Motion for Reconsideration of Denial of Summary
Gustave Kreppein died on August 22, 1984 from mesothelioma
and asbestosis. Prior to his death, he had pending in this
court an action for personal injury against Owens-Illinois,
among other defendants. After his death and on July 3, 1985,
Judge Sifton dismissed the claims against the other defendants
without prejudice and without opposition on statute of
limitations grounds, and dismissed the claims against
Owens-Illinois with prejudice upon its counsel's contention
that there was no evidence that Kreppein had been exposed to an
Owens-Illinois asbestos-containing product. Although Judge
Sifton's order dismissed the claim against Owens-Illinois with
prejudice, it did not direct entry of judgment on that order.
On August 14, 1986, Mary Kreppein filed the present action
for wrongful death and personal injury under New York's
one-year revival statute for certain toxic tort actions, 1986
N Y Laws, ch. 682 § 4.
The question is whether Judge Sifton's July 3, 1985 order was
a final judgment that collaterally estops the claims here
against Owens-Illinois. Owens-Illinois argues that the order
was such a judgment because it disposed of the personal injury
claims against all defendants. Plaintiff contends that Judge
Sifton's order, by dismissing without prejudice the claims
against other defendants, was not a final judgment.
According to Federal Rule of Civil Procedure 54(b), an order
that "adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate
the action as to any of the claims or parties" and the order
"is subject to revision" unless it contains an "express
determination there is no just reason for delay" and an
"express direction for the entry of judgment".
The court holds that the July 3, 1985 dismissal was a final
Though the question of whether state or federal law governs
the preclusive effect of a prior federal diversity judgment is
open to debate, see Gelb v. Royal Globe Insurance Co.,
798 F.2d 38, 42 n. 3 (2d Cir. 1986), this court follows the traditional
rule that a federal diversity court should apply state law, see
id. and United States v. Frank, 494 F.2d 145, 160 (2d Cir.)
cert. denied, 419 U.S. 828, 95 S.Ct. 48, 42 L.Ed.2d 52 (1974).
Collateral estoppel is appropriate where there is identity of
an issue necessarily decided in a prior action in which the
party whose claim is sought to be barred, or someone in privity
with that party, had a full and fair opportunity to litigate
the issue. S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300,
344 N.Y.S.2d 938, 298 N.E.2d 105 (1973).
The issue of Gustave Kreppein's exposure to Owens-Illinois'
products is identical in both actions. To recover on either a
personal injury or wrongful death claim the plaintiff must
prove such exposure. Kreppein or his representative had a full
and fair opportunity to litigate the issue before Judge Sifton.
The question that remains is whether Mary Kreppein was in
privity with Gustave Kreppein, the plaintiff in the first
Plaintiff concedes that ordinarily a personal representative
or distributee is in privity with the decedent where she has a
successive relationship to the same right of property. See e.g.
In re Estate of Werger, 64 Misc.2d 1094, 315 N.Y.S.2d 943, 946
(N.Y.Sur. 1970). She argues, however, that she does not have a
truly "successive" relationship because a wrongful death action
is not a simple devolution of decedent's cause of action, or
property of the decedent's estate, but is rather a separate
cause of action to compensate the distributees for an ...