Cimino v. Raymark Industries, Inc.

OPINION AND ORDER

The odyssey of asbestos litigation in the Eastern District of Texas has now entered its third decade. The trek started by Clarence Borel and Claude Tomplait has been marked by aimless wandering through the legal wilderness. The journey has taken its predicted toll. Raymark, Forty-Eight Insulations, Unarco, Standard Asbestos, *651 Johns-Manville, Eagle-Picher, and now Celotex are bankrupt. Other defendants are clearly in the twilight of their participation. Four hundred and forty-eight members of the class have died waiting for their cases to be heard. The departed companies and plaintiffs have all been victims of a system that has seen a substantial majority of the compensation dollar go to witnesses and lawyers in the form of transaction costs. Transaction costs consumed $.61 of each asbestos-litigation dollar with $.37 going to defendants litigation costs; the plaintiffs receive only $.39 from each litigation dollar. Institute for Civil Justice, Annual Report, April 1, 1990-March 31, 1991 (RAND). The remaining parties have also been victimized by the same costs and the inability of the courts to provide a forum to the litigants.

A review of this litigation with the perspective of hindsight reveals many mistakes and missed opportunities by both this Court and the Court of Appeals. In 1981, Forty-Eight Insulations sought to conduct discovery in preparation for asserting a district wide market share determination among the defendants in order to reduce the costs of continuing expensive, individual discovery and trial on the exposure question, and to more accurately establish apportionment of causation among the defendants. Forty-Eight Insulations abandoned its motion because of pressure from co-defendants. In retrospect, this Court could have saved millions of dollars in unnecessary transaction costs by forcing the issue. Also, in 1981 in an attempt to reduce costs by avoiding repetitive identical trials, the Court by way of issue preclusion found asbestos containing products defective and unreasonably dangerous as a matter of law and further precluded plaintiffs from seeking punitive damages. The Court of Appeals in Hardy v. Johns-Manville Sales Corp., 681 F.2d 334 (5th Cir.1982), rejected the approach. Again in retrospect, this Court should have recognized the fact that there was a disparity of appreciation for the magnitude of the problem between the trial court and the Court of Appeals. The disparity resulted from the trial court’s daily involvement with asbestos litigation and the Court of Appeals’ exposure being limited to infrequent appeals. Instead of blindly following Hardy for eight years, this Court should have caused thirty to forty identical appeals to have been processed in order to enhance the awareness level of the Court of Appeals. The defendants’ victory in Hardy has cost over four hundred million dollars in increased and unnecessary transaction costs and has preserved for defendants the right to be subjected to punitive damages.

Yet another approach was the Court’s establishment of a voluntary ADR program for asbestos cases filed after the cutoff date in Jenkins v. Raymark Industries Inc., 782 F.2d 468 (5th Cir.1986). Most, but not all, defendants elected to participate. The ADR program provided many partial settlements before it was set aside by the Eastern District Court sitting en banc. The ADR program was flawed in three respects. First, under existing law it could not be binding or mandatory. Second, some plaintiffs’ counsel were uncooperative and the defendants made it largely ineffective by delay tactics; and third, the defendants’ inability to agree among themselves on apportionment of damages doomed the plan.

The Court was then back to the Jenkins procedure. However, Jenkins also was flawed in that it could not accommodate the large number of cases that had accumulated on the Court’s docket.

The Court has now witnessed an evolution in defense strategy employed by Pittsburgh-Coming, Fibreboard and Celotex. Early on these defendants typically settled their cases. Pittsburgh-Corning was a prime mover in getting Jenkins settled. A new strategy has now been adopted. Pittsburgh-Corning, Fibreboard and Celotex have adopted a “fortress mentality” and are attempting to avoid liability by obstructing the Court’s ability to provide a forum in these cases. It is a strategy that is not unique to East Texas, but is one that is being utilized all across the country. They assert a right to individual trials in each case and assert the right to repeatedly contest in each case every contestable issue *652 involving the same products, the same warnings, and the same conduct. The strategy is a sound one; the defendants know that if the procedure in Cimino is not affirmed, these cases will never be tried.

If the Court could somehow close thirty cases a month, it would take six and one-half years to try these cases and there would be pending over 5,000 untouched cases at the present rate of filing. Transaction costs would be astronomical.

The great challenge presented to the Court by this litigation is to provide a fair and cost effective means of trying large numbers of asbestos cases. It is not enough to chronicle the existence of this problem and to lament congressional inaction. The litigants and the public rightfully expect the courts to be problem solvers.

THE REAL WORLD

In the real world, the scientific community long ago resolved the issues that continue to be litigated by the courts. Every institution, apart from the courts, that has investigated this remarkable natural mineral has concluded that it is inherently dangerous. The asbestos fibers themselves are invisible. They are easily dispersed into the air when asbestos containing products are handled, such as in application or removal. The scientific community agrees that:

1. There is no safe level of exposure.

2. There is a dose/response relationship that manifests itself in either the type disease that one may contract or the length of latency period between exposure and disease manifestation.

3. Asbestos is a competent producing cause of the diseases of mesothelio-ma, asbestosis, lung cancer, and pleural disease. Unanimity of opinion is not yet achieved regarding gastrointestinal tract cancers although the evidence has satisfied the Surgeon General.

4. Mesothelioma is an untreatable terminal cancer.

5.Asbestosis is a progressive untreatable disease of the lung.

Asbestos has either been banned or declared hazardous by the Occupational Safety and Health Administration, the National Institute for Occupational Safety and Health, the Environmental Protection Agency and the Surgeon General. These agencies have further concluded that all asbestos fiber types pose similar risks, therefore all fiber types are regulated equally.

During the course of the Cimino trial while the question of whether asbestos products were unreasonably dangerous was being litigated once again in Beaumont, the federal courtroom in Tyler was being used by the State Court of Appeals Judges because men in spacesuits were removing asbestos from their chambers.

THE PLAN

The plan is a simple one and reflects this Court’s agreement with the comments of Professor Charles Alan Wright:

“I was an ex-officio member of the Advisory Committee on Civil Rules when Rule 23 was amended, which came out with an advisory committee note saying that mass torts are inappropriate for class certification. I thought then that was true. I am profoundly convinced now that that is untrue. Unless we can use the class action and devices built on the class action, our judicial system is not going to be able to cope with the challenges of the mass repetitive wrong.”

See H. Newberg, Newberg on Class Actions § 17.06, at 373 (2d ed. 1985).

On February 19, 1990, this Court certified a class under Fed.R.Civ.P. 23(b)(3) consisting of 3,031 plaintiffs with existing cases in the Eastern District of Texas, all claiming an asbestos-related injury or disease resulting from exposure to defendants’ asbestos containing insulation products. Seven hundred thirty-three cases were removed as a result of being dismissed, severed or settled. The class consisting of 2,298 plaintiffs went to trial *653 against Pittsburgh-Corning, Fibreboard, Celotex, Carey-Canada, and ACL.

PHASE I

Phase I utilized the same procedures approved in Jenkins v. Raymark Industries, Inc. supra, to resolve all common issues. The issues were whether each asbestos containing insulation product manufactured by each defendant, settling and non-settling, was defective and unreasonably dangerous, the adequacy of warnings, the state of the art defense and the fiber type defense. The question of punitive damages in the entire case of the 2,298 class representatives was also submitted for jury determination.

PHASE II

Phase II required a jury finding for each of nineteen worksites during certain time periods regarding which asbestos containing insulation products were used, which crafts were sufficiently exposed to asbestos fibers from those products for such exposure to be a producing cause of an asbestos-related injury or disease and an apportionment of causation among defendants, settling and non-settling.

In other words, the exposure questions to be submitted would be specific as to time, place, craft, and amounts of exposure.

PHASE III

Phase III is the damage issue. The 2,298 class members were divided into five disease categories based on the plaintiffs injury claims. The Court selected a random sample from each disease category as follows:

SAMPLE SIZE DISEASE CATEGORY POPULATION

Mesothelioma 15 32

Lung Cancer 25 186

Other Cancer 20 58

Asbestosis 50 1,050

Pleural Disease 50 972

TOTAL 160 2,298

The damage case of each trial sample class member randomly drawn was then submitted to a jury. Each plaintiff whose damage case was submitted to the jury is to be awarded his individual verdict and the average verdict for each disease category will constitute the damage award for each non-sample class member.

Plaintiffs have agreed to the procedure, thereby waiving their rights to individual damage determinations.

THE TRIAL

Phase I began with jury selection on February 6, 1990 and the verdict was returned March 29, 1990. The Court then granted the parties’ request for additional preparation time between Phase I and Phases II and III. Two juries were selected on July 3, 1990. The juries sat together for the first five trial days which were devoted to general medical testimony. The juries were then divided and began hearing testimony on groups of plaintiffs and returning damage verdicts. The last verdict for the 160 individual damages cases was received October 5, 1990.

In all, the trial consumed 133 days of trial time and produced 25,348 pages of transcript prepared as daily copy. The docket sheet in the Clerk’s office is 529 pages long. The Court has entered 373 signed Orders.

Prior to trial 1,885 sets of interrogatories were answered by the parties and 2,354 depositions were taken, with an additional 800 being taken during trial. Independent medical examinations were conducted of 1,400 plaintiffs.

During the course of the trial, 271 expert witnesses and 292 fact witnesses testified, 6,176 exhibits were received in evidence constituting 577,000 pages of documents. Fifty-eight individual lawyers participated in the in-court presentation of this case which was presided over in varying degrees by four district judges and three magistrates.

If all that is accomplished by this is the closing of 169 cases, then it was not worth the effort and will not be repeated.

PHASE II — STIPULATION

Phase II of the trial was designed to resolve the issue of the plaintiffs’ exposure *654 to the defendants’ products on a class wide basis. The Court’s goal in this respect was facilitated by the homogeneous nature of these particular plaintiffs’ work histories.

The Court first compiled a list of work-sites, various locations consisting mostly of oil and chemical refineries, where the majority of the plaintiffs allegedly were occupationally exposed to asbestos in the course of their employment. The Court next compiled a list of job classifications, or crafts, which the plaintiffs worked in during their employment at the worksites. It was contemplated that any plaintiff whose work history did not include a threshold amount of time in any of the worksites would have the exposure issue tried in an individual mini-trial.

Prior to the Court drafting a verdict form for Phase II, the parties agreed to stipulate as to what the jury findings would have been had Phase II been tried to a jury. The parties stipulated that the jury would have apportioned causation among the defendants in the amounts of 10% causation for each of the non-settling defendants and 13% causation for the settling defendant Johns-Manville Corporation.

The verdict form for Phase II would have been worksites. For each worksite there would have been two interrogatories. The first interrogatory would have asked whether or not each of the various crafts at a worksite was sufficiently exposed to asbestos for that exposure to be a producing cause of the disease of asbestosis 1 during successive time periods. The second interrogatory then would have requested the jury to determine, for each craft and each time period answered affirmatively in the first interrogatory, the percentage of comparative causation, if any, that each defendant’s products contributed to the exposure.

CAUSATION

In order to recover under Texas law, a plaintiff must prove that a defendant’s unreasonably dangerous product was a producing cause of a plaintiff’s injury or disease. Hartzell Propeller Co. v. Alexander, 485 S.W.2d 943, 946 (Tex.Civ.App.—Waco 1972, writ ref. n.r.e.). A producing cause is defined as an efficient, exciting, or contributing cause which in a natural sequence of events produces an injury or disease. Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975). There may be more than one producing cause of an injury or disease. Id.

A plaintiff in an asbestos suit need not show that exposure to a defendant’s product was the sole cause of the asbestos-related injury or disease. If exposure to the defendant’s product combined with other causes to concurrently produce a single injury, the plaintiff may recover from the defendant for the entire injury. Shipp v. General Motors Corporation, 750 F.2d 418, 425-26 (5th Cir.1985). The plaintiff need only show that exposure to a defendant’s product was a substantial factor in causing the plaintiff’s injury. Gideon v. Johns-Manville Sales Corporation, 761 F.2d 1129, 1145 (5th Cir.1985).

PREJUDGMENT INTEREST

For cases in this action filed before September 2, 1987, the issue concerning an award of prejudgment interest is governed by Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985). For those individual cases filed on or after September 2, 1987, prejudgment interest is governed by Cavnar as well as by Tex.Rev.Civ.Stat. Ann. art. 5069-1.05 sections 2 and 6 (Vernon Supp.1990).

Cases Filed Before September 2, 1987

In Cavnar, the Texas Supreme Court held that a prevailing plaintiff in a tort action “may recover prejudgment interest compounded daily (based on a 365-day year) on damages that have accrued by the time of judgment.” 696 S.W.2d at 554. The court stated that “prejudgment interest shall accrue at the prevailing rate that exists on the date judgment is rendered according to the provisions of Tex.Rev.Civ. *655 Stat.Ann. art. 5069-1.05 section 2_” Id. Under Texas law pursuant to Cavnar, prejudgment interest is not permitted for future or punitive damages. Id. at 555-556.

The issue remaining for this Court to decide is what date should be used to compute prejudgment interest. According to Cavnar,

In wrongful death and non-death personal injury cases, interest shall begin to accrue on both pecuniary and non-pecuniary damages from a date six months after the occurrence of the incident giving rise to the cause of action.

696 S.W.2d at 555. For eases involving a decedent, prejudgment interest is to accrue from the date of death or six months after the injury-causing incident occurred, whichever gives rise to the larger interest award. Id.

Plaintiffs argue that prejudgment interest should accrue six months after the date each plaintiff was first exposed to the defendants’ asbestos fibers. The defendants contend that the accrual date should be six months after the date each plaintiff was diagnosed as having an asbestos-related injury or disease.

Texas law has rejected the diagnosis date as the operative date for computing prejudgment interest. See Cavnar, 696 S.W.2d at 555; American Cyanamid Co. v. Frankson, 732 S.W.2d 648, 660 (Tex.App.—Corpus Christi 1987, writ ref’d n.r. e.). In an asbestos personal injury case, the incident giving rise to a plaintiffs cause of action is the plaintiffs total exposure to asbestos fibers which results in an asbestos-related injury or disease.

It is scientifically undisputed that asbestosis is a dose/response disease. Asbestos fibers, once inhaled, remain in place in the lung, causing a tissue reaction that is slowly progressive and irreversible. Typically, the disease does not manifest itself until years after initial exposure to asbestos fibers. The duration of this latency period depends to some extent on the individual characteristics of the person exposed. Asbestosis is cumulative as each additional exposure to asbestos produces additional tissue changes. These factors make it impossible to determine which exposure or exposures caused the disease. See Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974).

The disease of mesothelioma, on the other hand, can be caused by a single exposure to asbestos fibers. As with asbestosis, mesothelioma usually involves a long latency period. It is therefore not possible to determine which exposure caused the disease. See Borel, 493 F.2d at 1083.

There is authority in Texas to support the proposition that prejudgment interest should accrue six months after a plaintiff’s first exposure to asbestos. In American Cyanamid Co. v. Frankson, a Texas court held that the “occurrence” in a personal injury case involving a defective drug administered in a series of doses was when the drug was first prescribed by the defendant doctor. 732 S.W.2d at 660. It is also noted that in Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 385 (Ind.1989), the Supreme Court of Indiana has held that, with regard to a latent disease, the “injury begins from the moment the foreign substance is introduced into the body.”

However, the better reasoned approach is that, in an asbestos suit, prejudgment interest accrues six months after a plaintiff’s last exposure to asbestos fibers. It is not possible to determine that any particular exposure to asbestos was the cause of an asbestos related disease, but only that an individual’s cumulative exposure, ending with the last date of exposure, was the cause of an asbestos-related disease. The use of the last exposure date as the “incident giving rise to the cause of action” comports with the rationale of Cavnar — to provide full compensation for plaintiffs by awarding interest on damages that have actually been sustained. See 696 S.W.2d at 554-555. Use of the first exposure date as the operative date would make it possible for a plaintiff to collect prejudgment interest for a period where no injury has yet occurred. As a matter of equity, use of the last exposure date for the accru *656 al of prejudgment interest is more appropriate in an asbestos case.

From the foregoing, this Court finds as a matter of law that prejudgment interest in an asbestos personal injury case filed before September 2, 1987 accrues six months after a plaintiffs last exposure to asbestos fibers. Prejudgment interest in such cases shall accrue according to the rate established by Tex.Rev.Civ.Stat. art. 5069-1.05 section 2 (Vernon 1987).

Cases Filed On or After September 2, 1987

For cases filed on or after September 2, 1987, Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 section 6 (Vernon Supp.1990) provides the following:

(a) Judgment in wrongful death, personal injury, and property damage cases must include prejudgment interest ... Prejudgment interest accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered.

(g) The rate of prejudgment interest shall be the same as the rate of post-judgment interest at the time of judgment and shall be computed as simple interest.

Pursuant to Cavnar, prejudgment interest does not apply to future and punitive damages in these cases. Cavnar, 696 S.W.2d at 555-56. In addition, prejudgment interest in these cases shall accrue at the rate established by Tex.Rev.Civ.Stat.Ann. art. 5069-1.05 section 2 (Vernon Supp.1990).

Although the Court notes this modification in Texas law, it is also noted that the parties have stated on the record that the Phase II stipulation, setting the defendants’ liability in terms of percentages of comparative causation pursuant to Duncan, applies to all of the plaintiffs’ cases, including those filed after September 2, 1987. Since the amount of the plaintiffs’ actual damages will be determined pursuant to Texas law under Duncan, the amount of prejudgment interest will be calculated according to the same law.

JOHNS-MANVILLE SETTLEMENT

Each of the plaintiffs in this case has previously reached a non-cash settlement agreement with an insolvent defendant, Johns-Manville Corporation. The Court orders that the non-settling defendants shall be jointly and severally liable to each plaintiff for the amount of his or her settlement with Johns-Manville. It is further ordered that Johns-Manville’s financial obligation to the individual plaintiffs under the settlement agreement is hereby assigned to the non-settling defendants. The amount of the assignment shall not exceed Johns-Manville’s percentage of actual damages as set by the jury in this case.

This transfer of an insolvent defendant’s non-cash settlement obligation to the non-settling defendants under the present circumstances follows the ruling in McNair v. Owens-Coming Fiberglas Corp., 890 F.2d 753 (5th Cir.1989). In McNair, the plaintiffs received promissory notes from two settling defendants. The district court refused to reduce the non-settling defendants’ liability by the amount of the notes, and instead assigned the notes to the non-settling defendants. 890 F.2d at 755. The Fifth Circuit upheld the assignment, noting that, “at the time the judgment was entered, the [plaintiffs] were not entitled to the $7,200 [the cash value of the notes] because payment of the notes was [ ...] contingent on the outcome of [other] litigation [...].” at Id. at 756.

The plaintiffs in the present case likewise are not entitled to the cash value of their settlement. Under the settlement agreement, Johns-Manville has promised to pay the plaintiffs a specified sum of money over a period of years, with the first payment not due until 1991. The settlement agreement is, in effect, a promissory note. Payment of this “note” is contingent on the outcome of the unstable Johns-Manville Corporation bankruptcy proceedings and on the continued financial viability of the Johns-Manville Trust Fund, which has *657 reached a critical condition. At the time of the entry of this Order all payments by the Manville Trust have been stayed by the New York Court. See In re Joint Eastern and Southern District Asbestos Litigation; In re Johns-Manville Corp., NYAL (BNY Order, Nos. 82 B 11656 — 82 B 11676 (Unpublished Order dated Nov. 6, 1990). The future of the Manville Trust payments is no better than the Fibreboard notes in McNair.

The Court recognizes that McNair involved a case governed by Tex.Civ.Prac. & Rem.Code Ann. §§ 33.001-016 (Vernon Supp.1989), unlike the cases of the majority of plaintiffs in the present action which are governed by Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984). McNair states that § 33.013 of the statute, “clearly contemplates that in some cases (the present case included) a defendant will be liable for a percentage of total damages greater than the defendant’s percentage of responsibility.” 890 F.2d at 753. In other words, it is this section’s imposition of joint and several liability which justifies a shift of a defendant’s liability and the risk of loss to the non-settling defendants.

This reasoning in McNair is applicable to the cases governed by Duncan and becomes more compelling under the policy concerns expressed in that case. As the Texas Supreme Court stated in Duncan:

“The existence of joint and several liability becomes important when one or more defendants are insolvent. When a defendant is insolvent, the goal of allocating the loss among those responsible cannot be achieved. Nevertheless, joint and several liability in such cases furthers the fundamental policy of tort law to compensate those who are injured.” [footnote omitted] 665 S.W.2d at 429.

The assignment in this case does not violate the Duncan rule that the defendant’s liability shall be reduced by the percent share of causation assigned to the settling tortfeasors, Id., because as in McNair, the non-settling defendants’ total liability for damages is not increased. The defendants will be made whole when the amounts due under Johns-Manville’s promissory note are paid directly to the liable defendants. McNair, 890 F.2d at 756. It merely imposes the risk created by Johns-Manville’s financial status on the defendants instead of the plaintiffs, which Duncan explicitly approves of. Duncan, 665 S.W.2d at 429.

Furthermore, the parties have agreed that the defendants’ liability for all of the cases will be determined according to the percentages of causation set forth in the Phase II stipulation. Thus, those cases which would have been governed by the Texas tort reform statute are now governed by Texas law under Duncan. The joint and several liability of the defendants is the same for all of the cases and the reasoning behind the assignment in McNair should apply to all of the cases.

REMITTITUR AND NEW TRIALS

The Court has examined the verdicts in the cases of the nine class representatives and the 160 trial sample plaintiffs and has ordered remittiturs in 34 of the pulmonary and pleural cases and in one mesothelioma case. The Court has granted a new trial in one mesothelioma case.

The usual remittitur analysis was conducted by the Court. However, in these cases the Court was required also to examine the medical evidence to determine which cases had progressed medically. The Court noted that many cases that earlier on had diagnosis of pleural disease or pulmonary asbestosis with limited fibrotic development had markedly changed as a result of disease progression by the time the cases actually went to trial.

PUNITIVE DAMAGES

In Phase I of this trial, the jury found the non-settling Defendants grossly negligent and held them liable for punitive damages. In response to Interrogatory VII of the Phase I verdict form, the jury assessed a punitive damages multiplier “for each $1.00 of actual damages” in the following amounts:

*658 Carey-Canada S-' Vi M Ü1 o

Celotex C/* DO O o

Fibreboard K/J H Ül o

$3.00 Pittsburgh-Corning

This use of a punitive damage multiplier was suggested in Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 474 (5th Cir.1986).

A plaintiff is entitled to recover punitive damages under Texas law if the evidence supports a jury finding of gross negligence on behalf of the defendant. “The critical issue in Texas punitive damages law is excessiveness or ‘reasonable proportionality.’ ” Jenkins v. Raymark Industries, Inc., 782 F.2d 468, 474 (5th Cir.1986). Exemplary damages must be reasonably proportioned to actual damages. Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex.1981). This court does not find the amount of the multipliers to. be excessive as to suggest that passion rather than reason motivated the jury. See Edwards v. Armstrong World Industries, Inc., 911 F.2d 1151, 1154 (5th Cir.1990).

The issue which remains is how to apply the multipliers to the actual damages found by the jury. Plaintiffs argue that the amount of punitive damages assessed against each defendant should be determined by applying the multiplier to the total amount of compensatory damages found by the jury for each plaintiff and contend that under the wording of Interrogatory VII, this is the result the jury anticipated and intended. The defendants argue that the multipliers should be applied only to the percentage of liability for actual damages allocated to each of the defendants by the jury. A third alternative is to apply the multipliers to the amount for which each defendant is jointly and severally liable.

Taking into account equitable considerations, and in the nature of a remittitur, the Court has decided to apply the multipliers set for a defendant to that defendant’s allocated share of actual damages. This ruling also most closely comports with the holding in Edwards v. Armstrong World Industries, Inc., 911 F.2d at 1154.

The defendants’ allocated share of actual damages to which the multipliers will be applied has been altered by the fact that one of the non-settling defendants, Celotex, filed for Chapter 11 reorganization soon after the conclusion of the trial. Because the defendants are jointly and severally liable for actual damages, Celotex’s percentage of causation will be divided among the two remaining defendants, Fibreboard and Pittsburgh-Corning, and each of their shares of actual damages will increase by half of Celotex’s share. This is the amount to which the multipliers will be applied. During the trial the parties did not present for the jurys’ consideration evidence relating to the net worth of the defendant companies, the extent of their insurance coverage, or how much punitive damages each defendant has actually paid in the past in asbestos cases.

CONTRIBUTORY NEGLIGENCE AND SMOKING

The parties were instructed that all evidence relating to any alleged contributory negligence of the plaintiffs was to be presented during Phase III of the trial.

The defense of contributory negligence requires findings that the victim was negligent, or failed to act as an ordinary, prudent person, and that the victim’s negligence was a proximate cause of the injury or damages. Brown v. Edwards Transfer Co., 764 S.W.2d 220, 223 (Tex.1988). Consequently, a plaintiff’s smoking may only be considered contributory negligence if the plaintiff is suffering from an asbestos-related disease which is synergistically linked to smoking. Furthermore, the defense of contributory negligence requires a showing that the plaintiff had subjective knowledge and appreciation of the danger of a product. Terminix, Inc. v. Right Away Foods Corp., 771 S.W.2d 675, 682 (Tex.App.—Corpus Christi 1989, writ de nied ). For smoking to be considered contributory negligence, it must be shown that the plaintiff had subjective knowledge of the synergistic relationship between the asbestos-related disease and smoking and appreciated the danger of continued smoking.

*659 These elements of contributory negligence likewise apply to the alleged failure of a plaintiff to wear a respirator and the failure to follow a doctor’s advice.

In cases where there was no evidence of smoking constituting contributory negligence, evidence of a plaintiffs smoking was still allowed on the issue of damages to show quality of life and life expectancy.

ASBESTOS CORPORATION LIMITED

A majority of the shares of ACL is owned by the Province of Quebec, Canada. This fact establishes ACL’s status as a foreign instrumentality under the Foreign Sovereign Immunities Act. See 28 U.S.C. 1603(b) (Supp.1990). Accordingly, the Court granted ACL’s motion for a nonjury tr