United States District Court, Eastern District of New York
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
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".
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.
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 injury
distinct from that the decedent suffered. McDaniel v.
Clarkstown Central School District No. 1, 110 A.D.2d 349, 494
N YS.2d 885, 887 (2d Dept. 1985).
It is true that the New York courts have held that the
surviving personal injury action and the wrongful death action
are different in many respects. For example, under CPLR § 1411,
contributory negligence of a decedent does not bar recovery in
a wrongful death action brought after September 1, 1975, even
though at the time of death the decedent could not recover for
the personal injuries if contributorily negligent. Id.
Similarly, the two kinds of actions may have different statutes
of limitations, see id. and Morano v. Saint Francis Hospital,
100 Misc.2d 621, 420 N.Y.S.2d 92, 95 (Sup.Ct. 1979).
But these decisions are not pertinent here where the question
is privity, "an admittedly amorphous term." Weiner v. Greyhound
Bus Lines, Inc., 55 A.D.2d 189, 389 N.Y.S.2d 884, 887 (2d Dept.
Section 5-4.1 of the Estates, Powers and Trusts Law of New
York provides in pertinent part:
The personal representative . . . of a decedent .
. . may maintain an action to recover damages for
a wrongful act, neglect or default which caused
the decedent's death against a person who would
have been liable to the decedent by reason of such
wrongful conduct if death had not ensued.
There is no cause of action for wrongful death unless decedent
could prove he was personally wronged in some way that
eventually caused his death, in this case unless he proved that
he had been exposed to Owens-Illinois products. See McDaniel v.
Clarkstown Central School District No. 1, 494 N.Y.S.2d at 888.
Thus, a judgment dismissing a decedent's personal injury
claim made during his lifetime will bar a later wrongful death
action. Littlewood v. Mayor, etc. of New York, 89 N.Y. 24
The relevant analogy is to the bar of a plaintiff's loss of
consortium action where his or her spouse's underlying personal
injury claim is dismissed in a prior proceeding. Forte v.
Kaneka America Corp., 110 A.D.2d 81, 493 N.Y.S.2d 180, 184 (2d
Dept. 1985). In such a case the plaintiff's claim is barred,
even though she was not a party to the prior action, because
her claim was based on the alleged injury to her husband. Id.
Similarly, where an administratrix defended her husband's
estate against personal injury claims, her wrongful death
action can be estopped by the prior verdict finding her husband
negligent in the accident that took his life. Howard v. City of
New York, 38 A.D.2d 89, 327 N.Y.S.2d 429 (2d Dept.) aff'd 31
N Y2d 850, 340 N.Y.S.2d 165, 292 N.E.2d 306
(1971). She can be
in no better a position than her husband would have been had he
survived the accident. Id.
Though plaintiff here brings a cause of action distinct from
the one her husband brought during his lifetime, she stands in
the same position relative to Owens-Illinois as her husband
stood, and her interest as a distributee in litigating the
issue is derived from his. Moreover, in her capacity as
personal representative of his estate, she would have been the
proper plaintiff in Kreppein's personal injury action at the
time of Judge Sifton's order. See EPTL § 11-3.2(b).
The court concludes that plaintiff's claims against
Owens-Illinois are collaterally estopped by Judge Sifton's
order, and does not consider other motions made by this
Motions for Judgment Notwithstanding the Verdict and New Trial
All defendants have moved for judgment notwithstanding the
verdict, arguing that the evidence was insufficient to
establish that Kreppein was exposed to their products or that
such exposure was a proximate cause of his injury.
Plaintiff had the burden of proving that the asbestos
products to which he was exposed were those of the defendants,
and that this exposure was a substantial factor in his injury
and death. Derdiarian v. Felix Contracting Corp., 51 N.Y.2d
308, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980); Hymowitz v. Eli
Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941, 539 N.E.2d 1069,
cert. denied, ___ U.S. ___, 110 S.Ct. 350, 107 L.Ed.2d 338
Kreppein worked from 1940 to 1942 at Todd Shipyard as a
laborer cleaning up asbestos debris left by pipecoverers and
from 1950 through 1981 as an ironworker at various building
sites in the New York area. He testified as to his exposure to
asbestos dust from building materials he regularly worked with
at various jobsites. Seven witnesses testified who worked at
the same jobsites during the same or overlapping time periods
as had Kreppein. They corroborated his account of heavy dust in
areas where persons performing the sort of jobs Kreppein
performed were working. Some of these witnesses specifically
identified Philip Carey products and Eagle-Picher products at
Plaintiff also presented evidence that large quantities of
U.S. Mineral spray-fire-proofing were shipped and used at two
buildings at the times Kreppein was there as an ironworker. Two
witnesses testified that ironworkers were exposed to dust from
spray-fireproofing at these buildings when scraping it off
surfaces and walking through droppings. Though there was
inconsistent evidence as to the color of the fireproofing to
which the ironworkers were exposed and the color and placement
of U.S. Mineral fireproofing, the jury was entitled to decide
which portions of evidence and testimony they found credible.
The court finds that the evidence of exposure to defendants'
products, though circumstantial, was sufficient. See Johnson v.
Celotex, 899 F.2d 1281, 1285 (2d Cir. 1990). Likewise the
medical testimony as to the link between exposure to various
types of asbestos used in these products and Kreppein's
injuries was more than adequate
to establish causation. The jury's verdict was neither
unreasonable nor against the weight of the evidence.
The court finds no merit in Celotex's objections to the
court's reading the complaint as stating a claim for personal
injury, and to various evidentiary rulings, including the
admission of the Hemeon report, for the reasons given at trial.
Evidence as to what was scientifically discoverable or known
about the dangers of asbestos was introduced at trial, and
properly so. See LaDuca v. Celotex Corp., No. 89-7684 (2d Cir.
April 23, 1990). Manufacturers are obliged to keep abreast of
any scientific discoveries regarding the safety of their
products, and are under a duty to "fully test their products to
uncover all scientifically discoverable dangers before the
products are sold." Dartez v. Fibreboard Corp., 765 F.2d 456,
461 (5th Cir. 1985). The court finds no error in so instructing
All defendants object to their share of liability and the
amount of damages for pecuniary loss and loss of consortium
apportioned by the jury. The court finds the jury's verdict was
reasonably based on the evidence produced at trial.
Defendants' motions are denied, with the exception of
Owens-Illinois' motion for reconsideration of summary judgment.
The judgment is vacated with respect to Owens-Illinois.
Plaintiff is directed to submit an amended judgment to be
entered by the court, and any supporting papers, no later than
ten days from the date of this order.
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