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IN RE NEW YORK ASBESTOS LITIGATION

May 21, 1990

IN RE NEW YORK ASBESTOS LITIGATION. THIS ORDER RELATES TO: GUSTAVE KREPPEIN.


The opinion of the court was delivered by: Nickerson, District Judge.

MEMORANDUM AND ORDER

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 a remittitur.

Owens-Illinois' Motion for Reconsideration of Denial of Summary Judgment

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".

Judge Sifton's order did not include such a determination or direction. However, the court determines that the order terminated all claims against all parties. In this circuit, a dismissal without prejudice is a final order from which an appeal lies. Rinieri v. News Syndicate Co., 385 F.2d 818, 821 (2d Cir. 1967); Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 448 (2d Cir. 1978). A voluntary dismissal is equally a final order terminating litigation, though it may not be a sufficiently adverse judgment for a plaintiff to have standing to appeal. 5 Moore's Federal Practice ¶ 41.05[3].

The court holds that the July 3, 1985 dismissal was a final judgment.

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 action.

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 ...


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