DIANE BECKMANN , Individually v. Owens-Corning Fiberglas Corporation

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0027P (6th Cir.)
File Name: 00a0027p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DEBBIE R OGERS BARNES,
LISA BEAN , J OHN EDWARD
R OGERS, Co-Executors of the
Estate of Edward Doyle
Rogers (98-5371); DIANE
BECKMANN , Individually and
as the Executrix of the Estate
of Leroy Beckmann
(98-5376),
Plaintiffs-Appellants,
v.
OWENS-C ORNING FIBERGLAS
C ORPORATION ,
Defendant-Appellee.
;>

1
Nos. 98-5371/5376
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
Nos. 92-00191; 90-00673—Edward H. Johnstone,
District Judge.
Argued: June 18, 1999
Decided and Filed: January 18, 2000

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2 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
Before: KRUPANSKY, RYAN, and SUHRHEINRICH,
Circuit Judges.
_________________
COUNSEL
ARGUED: Kenneth L. Sales, SEGAL, SALES, STEWART,
CUTLER & TILLMAN, Louisville, Kentucky, for
Appellants. John L. Dotson, O’BRYAN, BROWN &
TONER, Louisville, Kentucky, for Appellee. ON BRIEF:
Kenneth L. Sales, Joseph D. Satterley, Kathleen M. Flynn,
SEGAL, SALES, STEWART, CUTLER & TILLMAN,
Louisville, Kentucky, Marc P. Weingarten, GREITZER &
LOCKS, Philadelphia, Pennsylvania, for Appellants. Donald
K. Brown, Jr., James P. Grohman, O’BRYAN, BROWN &
TONER, Louisville, Kentucky, for Appellee.
_________________
OPINION
_________________
RYAN, Circuit Judge. In these asbestos exposure wrongful
death cases, the plaintiffs, Barnes and Beckmann, fiduciaries
for their respective decedents’ estates, obtained separate jury
verdicts against Owens-Corning Fiberglas Corporation,
although in a consolidated trial. The jury apportioned liability
against Owens-Corning at 2% in Barnes’s case and 5% in
Beckmann’s. Both plaintiffs appeal and submit the following
three issues for our review:
• Whether the district court abused its discretion in
denying the plaintiffs’ motions for a new trial on the
basis that the jury’s apportionment of fault was against
the great weight of the evidence;
• Whether the district court improperly instructed the
jury with regard to allocation of fault; and

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26 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
Owens-Corning that the complaints introduced in evidence
are relevant to causation and sufficiently probative to survive
Rule 403 scrutiny, although the district court’s decision not to
exclude nonparty manufacturers had some potential for
confusing the jury. We do not believe the jury was confused
given the paucity of the evidence of Owens-Corning’s fault
found in these cases and given further its decision to allocate
40% liability in the Becht case. In Williams, 790 F.2d 552,
another toxic tort case involving toxic chemical exposure
rather than asbestos exposure, this court reversed the district
court’s decision not to allow into evidence a prior complaint
claiming the injuries alleged were caused by a different
defendant. There is no principled reason to treat differently
the allegations here, that other defendants were jointly liable.
Moreover, in Williams, we rejected a similar argument,
namely, that the complaints were merely to preserve the
ability to discover the proper defendant: “The plaintiff's
argument that the statements were made merely to preserve
legal rights may be quite persuasive, but should have been
made to the jury.” Id. at 556.
IV.
For the foregoing reasons, we AFFIRM the judgment
entered by the district court in each case.
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
3
• Whether the district court erred in allowing Owens-
Corning to read portions of the plaintiffs’ complaints
into evidence.
For the following reasons, we affirm the district court’s
judgment in each case.
I.
The decedents in these two cases, Leroy Beckmann and
Edward D. Rogers, worked with asbestos for many years.
Beckmann worked for Anaconda Aluminum in Louisville,
Kentucky, from 1963 to 1973 as a general laborer and a
maintenance machinist, and at Brown & Williamson from
1973 to 1982 as a maintenance worker. Rogers worked in the
whiskey filtration department at Barton Brands Distillery in
Kentucky from 1959 to 1990. Both men died of
mesothelioma, an asbestos-related form of lung cancer. The
plaintiffs are the personal representatives for their respective
decedent’s estates. For the sake of clarity, we refer to the
“Barnes” case hereafter by the name of the decedent,
“Rogers.”
The Beckmann estate sued a total of 18 manufacturers and
distributors of asbestos-containing products, while the Rogers
estate sued a total of 13. One manufacturer and distributor,
Johns-Manville, was joined as a third-party defendant in both
cases. Owens-Corning was the only defendant who appeared
at trial to defend, the plaintiffs having settled or dismissed
their claims against each of the other defendants.
At trial, the district court, over the plaintiffs’ objections,
permitted Owens-Corning to introduce in evidence the
complaints filed by each plaintiff and read the names of all
the original defendants to the jury. The plaintiffs now claim
error. At the close of the case, the court instructed the jury to
apportion liability pursuant to Ky. Rev. Stat. Ann. § 411.182,
which requires, “[i]n all tort actions . . . involving fault of
more than one party,” apportionment of liability among all
“part[ies] to the action, including third-party defendants and

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4 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
persons . . . released” by “[a] release, covenant not to sue, or
similar agreement.” In the court’s instructions to the jury
regarding apportionment of liability, the jurors were told to
indicate the percentages of the total fault in three categories,
as follows: (1) the percentage of fault attributable to the
decedents; (2) the percentage of fault attributable to Owens-
Corning; and (3) the percentage of fault attributable to “others
which may include,” and then the court named and the verdict
forms listed 13 asbestos manufacturers in the Rogers case and
15 in the Beckmann case.
The plaintiffs claim that one of the 15 in the Beckmann
case, Anchor Packing Co., was voluntarily dismissed, but we
find nothing in the record indicating the dismissal of Anchor
Packing. Contrary to the plaintiffs’ assertions, a company
called Foster Wheeler never appeared on either verdict form,
and we find nothing in the briefs or the record indicating that
Foster Wheeler and Anchor Packing are the same company.
Two other companies, Garlock, Inc. and Keene Building
Products Corporation, were never defendants in the
Beckmann case, although they were defendants in the Rogers
case, and did not enter into any settlement agreement with the
Beckmann plaintiff. In Rogers, two of the 13 corporations
listed in the “others” category, Celotex Corporation and
Eagle-Picher Industries, Inc., were never defendants in the
case, although they were defendants in Beckmann, and did not
enter into any settlement agreement with the Rogers plaintiff.
The jury awarded the plaintiffs substantial damages in both
cases, $1.76 million in Beckmann and $942,000 in Rogers.
However, the jury apportioned only 5% of the liability to
Owens-Corning in Beckmann and only 2% in Rogers. In a
third consolidated case that is the subject of a separate appeal
to this court, Becht v. Owens-Corning, No. 98-5387, the jury
awarded approximately $1.4 million in damages and
apportioned 40% of the liability to Owens-Corning.
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
25
In a diversity case, the admissibility of evidence is a
procedural matter governed by federal law. American Title
Ins. Co. v. Lacelaw Corp., 861 F.2d 224 (9th Cir. 1988).
“Pleadings in a prior case may be used as evidentiary
admissions.” Williams v. Union Carbide Corp., 790 F.2d
552, 556 (6th Cir. 1986). The Ninth Circuit gave the
following analysis of the nature of factual assertions
contained in pleadings:
“[U]nder federal law, stipulations and admissions in the
pleadings are generally binding on the parties and the
Court. Not only are such admissions and stipulations
binding before the trial court, but they are binding on
appeal as well.” Ferguson v. Neighborhood Housing
Services, 780 F.2d 549, 551 (6th Cir.1986) (citations
omitted). “Judicial admissions are formal admissions in
the pleadings which have the effect of withdrawing a fact
from issue and dispensing wholly with the need for proof
of the fact.” In re Fordson Engineering Corp., 25 B.R.
506, 509 (Bankr. E.D. Mich.1982). Factual assertions in
pleadings and pretrial orders, unless amended, are
considered judicial admissions conclusively binding on
the party who made them. See White v. Arco/Polymers,
Inc., 720 F.2d 1391, 1396 (5th Cir. 1983).
American Title, 861 F.2d at 226. Of course, under Fed. R.
Evid. 801(d)(2)(A), a party’s own statement that is offered
against him is “not hearsay.” Such statements are admissible
if they are relevant under Fed. R. Evid. 401 and their
probative value is not substantially outweighed by any
prejudicial effect under Fed. R. Evid. 403.
As a general matter, complaints are admissible under Rule
801(d)(2)(a) and specifically under the case law set forth in
American Title. While the naming of the other defendants is
not necessarily an “admission” of the other defendants’
liability, see, e.g., Whatley, 861 F.2d at 839, the complaints
admit the existence of potential claims against the named
defendants that may be relevant to causation. We agree with

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24 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
products. The jury was entitled to believe this evidence, and
accepting it would not be unreasonable.
Second, on our review of the evidence of record, as
described in part III.A. above, we find that the jury’s verdicts
as they related to Owens-Corning were not unreasonable.
Indeed, had the jury found Owens-Corning 0% liable in both
cases, we would not be free to disturb such a finding on this
record.
Finally, we note that the plaintiffs have failed to identify
any portion of the record indicating that they timely objected
to the jury instructions pursuant to Fed. R. Civ. P. 51. Thus,
any error would have to be sufficiently egregious to satisfy the
plain-error rule. Adam, 130 F.3d at 226, and we find none in
either case.
Reading the trial court’s instructions as a whole, we
conclude that they adequately informed the jury of the
relevant considerations and provided a basis for its decisions.
Although the district court erroneously included parties in the
instructions against whom the evidence was lacking, the
instructions, when viewed as a whole, were not confusing,
misleading, or prejudicial in terms of the jury’s ultimate task
of assessing Owens-Corning’s liability. Thus, we conclude
that any error in the manner in which the court instructed the
jury was harmless.
C.
Finally, we turn to the issue whether the district court erred
in allowing Owens-Corning to read portions of the plaintiffs’
complaints into evidence. This court generally reviews a
defendant’s challenge to the district court’s decision to admit
evidence for abuse of discretion. See, e.g., United States v.
Sanders, 95 F.3d 449, 453 (6th Cir. 1996). The parties have
not directly presented the issue as a hearsay problem that,
which, since it would involve application of Fed. R. Evid.
801, would call for a de novo review. See United States v.
Jinadu, 98 F.3d 239, 244 (6th Cir. 1996).
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
5
The Beckmann and Rogers plaintiffs filed motions for a
new trial on the apportionment issue, arguing that the verdicts
were against the great weight of the evidence; that the court’s
instructions improperly provided for allocation of fault to
parties against whom no evidence of fault was presented; and
that the court erred in admitting the plaintiffs’ complaints into
evidence. The district court denied the motions, finding that
the jury instructions were correct and that the apportionment
was “within the realm of reason.”
II.
During the relevant time period, Owens-Corning
manufactured and distributed an asbestos-based insulation
product known as Kaylo that was either installed or removed
in areas in which each plaintiff worked. In challenging the
jury’s verdicts, the plaintiffs argue that the evidence revealed
that the decedents were exposed to or worked with Kaylo to
a far greater extent than is reflected by the jury’s verdicts.
Thus, we must burden our opinion with a summary of the
facts in evidence relating to each decedent’s exposure to
asbestos, generally, and Owens-Corning’s product, Kaylo,
specifically.
A. Beckmann Exposure Evidence
Two witnesses, Lowell Collard and Ronald Spainhour,
testified as to the presence of Kaylo at Anaconda Aluminum.
Collard testified that he was installing Kaylo at Anaconda
Aluminum in the mid-1960s, and that it was very dusty.
Collard did not know Beckmann and did not know whether
Beckmann was in the part of the plant where asbestos
products were used. Spainhour worked directly with
Beckmann and testified that he could not identify any Owens-
Corning asbestos-containing products that were in use during
Beckmann’s tenure in the 1960s. He did describe some
insulation that he and Beckmann used in rebuilding industrial
furnaces, but none of the asbestos products he identified was

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6 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
an Owens-Corning product. He did not see Kaylo at
Anaconda Aluminum.
Several witnesses testified regarding Beckmann’s time at
Brown & Williamson. David Parker testified that he saw
insulation workers taking asbestos-based insulation out of
Owens-Corning boxes and that Owens-Corning was the only
name he ever saw on any of the boxes. Although Parker came
to know Beckmann later, he never knew him or saw him at
Brown & Williamson, and he had no knowledge regarding
Beckmann’s exposure or lack thereof to asbestos, although he
assumed Beckmann was exposed because of the nature of the
work he did. Although Parker testified that he saw the name
Owens-Corning on insulation boxes, he also testified that he
never saw Kaylo at Brown & Williamson. He also testified
that the plaintiffs’ counsel suggested the name Kaylo and
Owens-Corning to him, but did not mention other
manufacturers.
Charles Fleischer testified that Kaylo was in use at Brown
& Williamson and that it was very dusty. Fleischer also
identified other asbestos products in use at Brown &
Williamson that were manufactured by other defendants.
However, the plaintiffs admit that Fleischer worked at Brown
& Williamson from 1959-1964 and 1968-1971, whereas
Beckmann did not begin working there until 1973.
Collard testified that he installed asbestos at Brown &
Williamson from 1956-1962, and that the materials were
usually ordered from Owens-Corning. However, he also
identified other manufacturers whose products were used at
Brown & Williamson—manufacturers who were also
defendants. The plaintiffs’ brief incorrectly states that
Collard worked at Brown & Williamson in the 1970s when
Beckmann was there; he did not.
Robert Kinsella testified that his company installed Kaylo
at job sites listed in an exhibit he was handed at his video
deposition. He said the list was “pretty much” accurate. The
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
23
circumstantial nature of the evidence against Owens-Corning,
the jury could reasonably have inferred that the exposure to
Owens-Corning products was sufficiently slight to warrant
only a nominal apportionment of liability.
In Rogers, the decedent answered interrogatories and gave
a deposition before his death from mesothelioma. In his
answers to Owens-Corning’s interrogatories, Rogers stated
that “[d]uring the course of [his] career, he was exposed to
asbestos containing products manufactured by the
defendants.” In his responses to Owens-Corning’s requests
for admissions, Rogers specifically admitted exposure to
asbestos-containing products manufactured by A.P. Greene,
Garlock, Johns-Manville, W.R. Grace, Owens-Illinois, and
Pittsburgh Corning, all of whom were settling defendants
appearing on the verdict form. Rogers also admitted exposure
to asbestos-containing products manufactured by nonsettling
nonparty Celotex, who was incorrectly included in the verdict
form. Rogers also specifically admitted as to each of these
defendants that “such exposure was a substantial factor in
causing his alleged asbestos-related injury.” These responses
were introduced at trial and read to the jury. Moreover,
Rogers testified unequivocally that he worked on a daily basis
with raw asbestos, which the evidence indicated Owens-
Corning never manufactured. He identified Owens-Illinois as
the manufacturer that he recalled, while also referring to a
company called “Earthal” that is not involved in the case.
Rogers identified Celotex products and a product he referred
to as “Gold Bond,” but never mentioned Kaylo or Owens-
Corning in his testimony. The jury saw Rogers’s video
deposition at trial. Finally, the plaintiffs’ main witness in
Rogers, William Clark, was unable to differentiate between
Owens-Illinois and Owens-Corning in his testimony about
Rogers’s alleged exposure.
In both cases, the defendant presented evidence that
Owens-Corning had warning labels on its Kaylo product as
early as 1966, and that dust counts performed on Kaylo
showed it to be safe in comparison to its competitors’

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22 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
injury and death. If you so find, you will determine the
percentage of total fault attributable to the exposure to
the other product or products.
You will determine from the evidence what percentage
of total fault for the decedent’s injury was attributable to:
1. The decedent’s failure to use ordinary care for his
own safety;
2. Defendant’s asbestos-containing products; and
3. Asbestos-containing products manufactured or
distributed by other companies.
In determining the percentage of fault, you shall
consider both the nature of the conduct of each party at
fault and the extent of the causal relationship between the
conduct and the damage claimed.
(Emphasis added.) We presume the jury followed the
instructions as they were given and “determine[d] from the
evidence” whether the decedents were exposed to other
companies’ products, the extent to which such exposure
caused the decedents’ injuries, and the extent of the total fault
attributable to companies other than Owens-Corning.
In Beckmann, witness Collard identified asbestos products
in use at Brown & Williamson that were manufactured by
Johns-Manville, Pittsburgh Corning, and Philip Carey
Manufacturing Co. Owens-Corning presented expert
testimony that indicated that the Pittsburgh Corning and
Philip Carey products could not be used safely, while Kaylo
could be used safely. Moreover, in response to discovery
requests, Beckmann admitted at least possible exposure to
products manufactured by Johns-Manville, Owens-Illinois,
Pittsburgh Corning, and W.R. Grace. Finally, none of the
evidence submitted in Beckmann supported a direct link
between Beckmann’s presence at Anaconda or Brown &
Williamson and the presence of Kaylo in the same area as
Beckmann worked. Because of the indirect and
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
7
list included Brown & Williamson, but Kinsella did not
provide any specific dates or times when Kaylo may have
been in use.
Charles DuPont testified that he worked with Beckmann at
Brown & Williamson and that they usually worked the second
or third shift, whereas the insulators worked the first shift and
cleaned up after themselves before going off duty. DuPont
testified that he and Beckmann occasionally removed small
portions of insulation, but he could not identify the name or
manufacturer.
B. Rogers Exposure Evidence
Rogers testified in a video deposition before his death. He
testified that he was “pretty sure” he had been exposed to
asbestos pads made by Celotex or Owens-Illinois Glass Co.
Rogers clearly testified that he was exposed to “raw asbestos”
routinely while using it as a filtrate. Rogers identified the
manufacturer as Owens-Illinois or Earthal. Another witness,
Jerry Helser, testified that Owens-Corning never
manufactured or distributed raw asbestos. Rogers also
testified that other employees used “Gold Bond” insulation
and an unidentified “mud” product that may have contained
asbestos. Rogers stated that the “Gold Bond” was in a four-
foot by eight-foot sheet. However, according to Kinsella,
Kaylo came in a two-inch by 12-inch by 36-inch block.
Rogers did not testify that he was exposed to Kaylo or
otherwise attribute exposure to Owens-Corning in his video
deposition.
William Clark worked at Barton Brands from 1958 through
the time of trial, and he worked directly with Rogers. He
testified that raw asbestos was routinely used at Barton
Brands. He saw Rogers working with asbestos insulation, and
he identified Owens-Corning and Owens-Illinois as the
manufacturers. He recalled that sheet insulation was ground
up for use in filtration when it was not used up in insulation
activity and that Rogers was extensively exposed because he

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8 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
used the filtration asbestos almost every day. However, on
cross-examination, Clark was unable to differentiate between
Owens-Corning and Owens-Illinois. He also testified that the
sheet insulation was used at Barton Brands only until the early
1960s.
In his video deposition, Rogers was unable to state how
often extra insulation was ground up for filtration, and he
could specifically identify only one product as Owens-
Corning—a small filter pad that emitted no dust when it was
installed and was removed wet, that is, dustless. This was the
only product Rogers associated with Owens-Corning
specifically, and it was the only Owens-Corning product on
the job site.
III.
A.
The plaintiffs argue that the district court erred in denying
their motions for a new trial on the basis that the jury’s
apportionment of liability was against the great weight of the
evidence. The district court ruled, without providing findings
of fact or conclusions of law, that “the jury’s apportionment
of liability was within the realm of reason.”
1.
This court reviews a district court’s decision to deny a
motion for a new trial for an abuse of discretion. See Logan
v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989).
We will reverse such a decision only if we have “a definite
and firm conviction that the trial court committed a clear error
of judgment.” Id.
A court may set aside a verdict and grant a new trial when
it “‘is of the opinion that the verdict is against the clear
weight of the evidence,’” Duncan v. Duncan, 377 F.2d 49, 52
(6th Cir. 1967) (citation omitted); however, new trials are not
to be granted on the grounds that the verdict was against the
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
21
that a reasonable juror could conclude that apportionment of
some liability to that defendant is justified, thereby satisfying
the requirement that “the evidence is sufficient to submit the
issue of liability,” and ensuring consistency with the
underlying premise of the comparative fault system to provide
“‘liability for any particular injury in direct proportion to
fault.’” Floyd, 758 S.W.2d at 432 (citation omitted).
None of this is simple, but our ultimate resolution of this
issue is further complicated by the fact that the district court,
apparently in response to the plaintiffs’ objections to the
defendants’ proposed instructions, grouped the corporations
other than Owens-Corning together in a category designated
“others which may include.” In its verdict forms, the jury
allocated 0% of fault to the decedents and 5% and 2% to
Owens-Corning in Beckmann and Rogers, respectively, but
made no numerical allocation whatever to any specific
composition the court had listed under the category of
“others.” Instead, the jury simply allocated 95% and 98%,
respectively, of fault, in gross, to the entire category of
“others.” Under these circumstances, it is impossible for this
court to determine whether the jury actually apportioned
liability to any particular defendant in the “others” category,
and the question becomes whether the evidence was sufficient
for the jury to allocate the relevant share of liability to any one
or more of them. This is a concern, but we decline to
overturn the jury’s verdicts for three reasons.
First, there was some evidence in the record in each of the
cases from which the jury could reasonably have determined
that parties other than Owens-Corning, including those plainly
erroneously included in the verdict forms, were primarily at
fault. In both cases, the proofs focused on exposure. The
district court instructed the jury as follows in each case:
You will determine from the evidence whether the
decedent was exposed to one or more similar products
manufactured or distributed by a company other than the
defendant which was a substantial factor in causing his

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20 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
to the defendants, it would doubtless have been error to
include them in the apportionment instructions.
Id. at 228 n.6 (emphasis added). A district court would err if
it instructed a jury to apportion liability to a third-party
defendant where there had been a previous determination that
dismissal was appropriate because the evidence was
insufficient to support a finding of liability.
We recognize that no Kentucky case has directly addressed
the question whether fault may be apportioned to a settling or
dismissed party where the evidence is insufficient to support
a finding of liability, absent a previous determination.
However, we are confident, in light of the statute’s
requirement that the jury consider both conduct and causation
in determining fault, the Floyd and Kevin Tucker &
Associates courts’ references to the sufficiency of the
evidence, and this court’s discussion of dismissed third-party
defendants in Adam, that Kentucky courts would conclude
that apportionment of fault to defendants where the evidence
is insufficient to support liability is error. Accord Whatley v.
Armstrong World Indus., Inc., 861 F.2d 837, 839 (5th Cir.
1988). We conclude that the Kentucky cases assume the
point, and that the statute clearly requires sufficient evidence
to support a finding of fault as a prerequisite to apportionment
under subsection 2.
Section 411.182 applies in “tort actions . . . involving fault
of more than one party.” The jury must apportion fault
considering evidence of conduct and causation. If the
evidence is such that no reasonable juror could determine a
given party is at fault, logic dictates that the jury should not be
instructed to apportion fault to that party. Under section
411.182 a district court errs to the extent that it instructs a jury
to apportion liability to parties where the evidence adduced at
trial is insufficient as a matter of law to support a finding of
liability against those parties. In order to successfully obtain
an apportionment instruction as to a person covered by
section 411.182, the party seeking the instruction must show
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
9
weight of the evidence “unless that verdict was
unreasonable,” Holmes v. City of Massillon, 78 F.3d 1041,
1047 (6th Cir. 1996). Thus, if a reasonable juror could reach
the challenged verdict, a new trial is improper. See id. at
1048. “‘[C]ourts are not free to reweigh the evidence and set
aside the jury verdict merely because the jury could have
drawn different inferences or conclusions or because judges
feel that other results are more reasonable.’” Duncan, 377
F.2d at 52 (citation omitted). Kentucky courts follow a
substantially similar policy of reluctance to overturn the jury’s
verdict. See, e.g., Spears v. Burchett, 289 S.W.2d 731, 735
(Ky. Ct. App. 1956).
2.
We think it is clear that a reasonable juror could have
apportioned liability as these jurors did. Kentucky courts
adjudicate products liability cases according to principles of
strict liability. See, e.g., Nichols v. Union Underwear Co.,
602 S.W.2d 429, 433 (Ky. 1980). Thus, a defendant’s “fault”
is determined according to the unsafe or unreasonable
condition of the product. See id. The dispositive issue
presented to the jury was whether exposure to Owens-
Corning’s asbestos products caused the decedents’
mesothelioma, and the jury apparently found the evidence in
these cases too weak to support an inference of more than
minimal exposure to any Owens-Corning product.
Significantly, in Becht, which was also consolidated with
these cases for trial but appealed and decided separately, the
jury apportioned 40% liability to Owens-Corning, indicating
its ability to evaluate the evidence in each case independently
for the purpose of assessing the level of exposure to Owens-
Corning’s products.
Several witnesses testified in Beckmann, and their evidence
was equivocal as to whether Beckmann was exposed to Kaylo
or any Owens-Corning asbestos product. The evidence was
highly circumstantial, inviting the jury to infer a link between
the presence of Kaylo at Beckmann’s places of employment

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10 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
without direct testimony of exposure. The causal connection
between Beckmann’s mesothelioma and exposure to Owens-
Corning products, if it was established at all, was highly
speculative. In Rogers, although the jury awarded minimal
damages against Owens-Corning, apparently based upon the
decedent’s extensive exposure to raw asbestos or ground up
sheet insulation and the notable absence of other evidence
linking exposure to Owens-Corning’s products, the evidence
was such that a finding of little or no liability on Owens-
Corning’s part would have been entirely reasonable.
The plaintiffs’ contention that there was no evidence that
the other manufacturers’ products were at fault is inaccurate.
In Beckmann, Johns-Manville, a third-party defendant, and
Eagle Picher, an original defendant named in the Beckmann
complaint, were among the manufacturers identified in the
testimony. Moreover, in discovery, Beckmann admitted at
least possible exposure to products manufactured by Johns-
Manville, Owens-Illinois, W.R. Grace & Co., and Pittsburgh
Corning Corporation. In Rogers, witnesses identified Owens-
Illinois as the main manufacturer of products at Brown &
Williamson, and Rogers admitted extensive exposure to a raw
asbestos product that Owens-Corning did not manufacture.
Rogers never mentioned Owens-Corning or Kaylo in his
testimony, and the jury could have reasonably concluded that
the sheet insulation identified as the product ground for
filtration was something other than Kaylo, which came in
block form. Additionally, in discovery, Rogers admitted
exposure to products manufactured by Johns-Manville,
Garlock, Celotex, W.R. Grace, A.P. Greene Refractories Co.,
Owens-Illinois, and Pittsburgh Corning.
In Strickland v. Owens-Corning Fiberglas Corp., 142 F.3d
353, 356 (6th Cir. 1998), the jury allocated 70% of the fault
to Owens-Corning. We vacated the jury’s allocation of fault
and remanded the case with instructions that Owens-
Corning’s liability be capped at 50% because there was no
“basis for distinguishing [Owens-Corning’s] conduct as more
blameworthy” than Owens-Illinois’s conduct where Owens-
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
19
if there is never an “active assertion of a claim” against
the third-party, liability cannot be apportioned to him. . . .
Of course, if the third-party plaintiff's claim is dismissed,
the plaintiff may ordinarily amend his complaint to make
the ex-third-party defendant a defendant.
842 S.W.2d at 874 n.5 (citation omitted). We found it
implicit in this footnote that “if there has ever been an active
assertion of a claim against the third party—if the third party
has been impleaded by the original defendant, in other
words—liability can be apportioned to the third-party
defendant notwithstanding a dismissal prior to trial.” Adam,
130 F.3d at 228. In support, we referenced the following
language as explicitly making the point:
“[I]f the evidence at trial shows that [the general
contractor] caused some portion of the City’s damages,
Tucker will be entitled to an apportionment instruction.
[The general contractor] is entitled to be dismissed,
however, because they cannot be liable to Tucker under
any circumstances.”
Id. at 229 (quoting Kevin Tucker & Assocs., 842 S.W.2d at
875) (some emphasis added). Thus, we concluded in Adam
that the district court’s dismissal of two third-party
defendants, Med-Tech and Musick, before trial, “on grounds
independent of their liability to the plaintiffs [did not]
preclude[] any apportionment of fault to them.” Id. at 227
(emphasis added).
The converse of the above statement would also apply: If
a third-party defendant were dismissed before trial on the
ground that it could not be held legally liable to the plaintiffs
for their injuries, apportionment of fault to that third-party
defendant would be inappropriate. Indeed, in Adam we
observed:
If Med-Tech and Musick had been properly dismissed
on the ground that there was no evidence to support a
finding that they were liable to the plaintiffs, as opposed

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18 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
In determining the percentages of fault, the trier of fact
shall consider both the nature of the conduct of each
party at fault and the extent of the causal relation
between the conduct and the damages claimed.
(Emphasis added.) This language presumes that, before
apportioning liability to any party, the jury will find that party
“at fault” in terms of both aspects of the fault attributed to it.
In this case, the two aspects are (1) the party’s manufacture
and/or distribution of an unsafe product, and (2) causation,
that is, at a minimum, exposure to the unsafe product.
Consistent with this understanding of the rule, in Floyd, the
court explained:
If there is an active assertion of a claim against joint
tortfeasors, and the evidence is sufficient to submit the
issue of liability to [sic] each, an apportionment
instruction is required whether or not each of the
tortfeasors is a party-defendant at the time of trial.
758 S.W.2d at 432 (emphasis added).
In Kevin Tucker & Associates, the Kentucky Court of
Appeals affirmed the trial court’s judgment dismissing a
third-party defendant impleaded on a contribution theory
because the apportionment statute, by establishing a standard
whereby “each tortfeasor’s liability is limited by the extent of
his fault,” 842 S.W.2d at 874, precluded a finding that the
third-party defendant could be liable to the defendant “for all
or part of the plaintiff’s claim,” Ky. Civ. R. 14. We looked to
that decision in Adam to determine that the dismissal of third-
party defendants does not “preclude their being included in
the jury instructions on apportionment,” 130 F.3d at 228,
relying on the following language in a footnote in Kevin
Tucker & Associates:
[T]hird-party defendants may often be entitled to
dismissal on the grounds that they cannot be liable to the
third-party plaintiff. . . . This does not mean that
defendants should not assert these third-party claims; for
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
11
Corning was distributing a product manufactured by Owens-
Illinois. Id. Strickland adds little to our analysis here, where
there was some basis in the evidence for the jury’s
conclusion. Ironically, the plaintiffs in this case argue that the
jury’s verdicts were unreasonable, while the plaintiff in Becht,
represented by the same counsel, argues that the same jury
reasonably concluded that Owens-Corning was 40% at fault.
We agree with Owens-Corning that the evidence of exposure
to Kaylo in Becht was “less circumstantial” than the evidence
in Beckmann and Rogers, and we believe that the jury’s
allocation of significantly more fault to Owens-Corning on
stronger evidence in Becht demonstrates that it acted
rationally in evaluating the evidence in each case. Thus, we
conclude that the district court did not abuse its discretion by
refusing to grant a new trial on the basis that the jury’s
verdicts in Beckmann and Rogers were within the realm of
reason.
B.
The plaintiffs also argue that the district court’s jury
instructions on the allocation of fault erroneously included
parties about whom little or no evidence of fault was
submitted, and some of whom were never named as
defendants in the complaints.
1.
Federal jurisdiction in this case is based on diversity of
citizenship. See 28 U.S.C. § 1332. In a diversity case,
“federal law governs our standard of review for determining
whether a jury instruction is prejudicial.” Gafford v. General
Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (internal
quotation marks and citations omitted). Our duty is to
“review jury instructions as a whole to determine whether
they adequately inform the jury of the relevant considerations
and provide a basis in law for aiding the jury in reaching its
decision.” Jones v. Consolidated Rail Corp., 800 F.2d 590,
592 (6th Cir. 1986). We will reverse a jury’s verdict on the

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12 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
basis of improper instructions only when the instructions,
when viewed as a whole, are confusing, misleading, and
prejudicial. Federal courts generally presume the jury will
follow the instructions correctly as given. We will not reverse
a decision on the basis of an erroneous jury instruction where
the error is harmless. See United States v. Toney, 161 F.3d
404, 412-13 (6th Cir. 1998), cert. denied, 119 S. Ct. 1347
(1999).
2.
Ky. Rev. Stat. Ann. § 411.182 governs apportionment of
fault among multiple tortfeasors in Kentucky:
(1) In all tort actions, including products liability
actions, involving fault of more than one party to the
action, including third-party defendants and persons who
have been released under subsection (4) of this section,
the court, unless otherwise agreed by all parties, shall
instruct the jury to answer interrogatories or, if there is no
jury, shall make findings indicating:
(a) The amount of damages each claimant would be
entitled to recover if contributory fault is disregarded;
and
(b) The percentage of the total fault of all the parties
to each claim that is allocated to each claimant,
defendant, third-party defendant, and person who has
been released from liability under subsection (4) of this
section.
(2) In determining the percentages of fault, the trier of
fact shall consider both the nature of the conduct of each
party at fault and the extent of the causal relation
between the conduct and the damages claimed.
(3) The court shall determine the award of damages to
each claimant in accordance with the findings, subject to
any reduction under subsection (4) of this section, and
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
17
[T]he comparative negligence statute and Hilen both
preclude the adjudication of liability of persons or legal
entities who are neither before the court nor are settling
tort-feasors. . . . KRS 411.182 merely addresses the
procedure for apportioning liability among parties before
the court or who have settled or been released. It does
not direct or authorize the adjudication of fault of absent,
potential litigators.
Copass v. Monroe County Med. Found., Inc., 900 S.W.2d
617, 619 (Ky. Ct. App. 1995).
The Kentucky case law interpreting and applying section
411.182 uniformly rejects the inclusion of nonsettling
nonparties in the jury’s apportionment instructions.
Consequently, the district court erred when it included
Garlock and Keene in the “others” category in the Beckmann
case, because they were never parties and did not buy their
peace from the Beckmann estate. Likewise, the district court
erred when it included Celotex and Eagle-Picher in the
“others” category in the Rogers case, because they too were
never parties and did not buy their peace from Rogers or his
estate. However, for reasons explained below, we will not
reverse the jury’s verdicts on the basis of these errors alone.
In its instructions to the jury, the district court included
several other corporations in the “others” category, each of
whom were named parties who had been dismissed or had
otherwise settled their claims with the plaintiffs. The
plaintiffs contend that doing so was error because no evidence
was introduced of these manufacturers’ fault and there was
not sufficient evidence to establish that exposure to their
products caused the decedents’ mesothelioma. There is little
direct Kentucky authority on the question whether, assuming
a lack of evidence to support a finding of liability against a
particular party, it is error to permit a fact finder to consider
apportionment of fault against such party, even when there
clearly had been an active assertion of a claim against him.
However, Ky. Rev. Stat. Ann. § 411.182(2) states:

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16 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
adopt a theory of implied agreement between Betty and
Ralph by Betty’s failure to sue Ralph. While we will
liberally construe the statute, we believe Williams’
construction is beyond the bounds of liberality.
Id. (emphasis added). Thus, under Floyd, Dix, and Bass,
section 411.182 apportionment encompasses named parties,
including third-party defendants and parties dismissed for
whatever reason, and settling parties or settling nonparties. It
does not include nonsettling nonparties. See Kevin Tucker &
Assocs., Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874 (Ky.
Ct. App. 1992); see also Adam v. J.B. Hunt Transp., Inc., 130
F.3d 219, 227-28 (6th Cir. 1997).
The Kentucky Court of Appeals adopted this reading of the
statute two years later in Baker v. Webb, 883 S.W.2d 898 (Ky.
Ct. App. 1994). There, in connection with an automobile
collision causing injury to the plaintiff, the trial court
instructed the jury as to the legal duties of the defendant, the
plaintiff, and the plaintiff’s husband, who was not a party but
was driving one of the vehicles when the plaintiff was injured,
and included the plaintiff’s husband in the apportionment
instruction. The court of appeals reversed the jury’s
apportionment of 40% liability to the plaintiff’s husband,
concluding that section 411.182 does not apply to nonsettling
nonparties:
[T]he thrust of KRS 411.182, considered in its entirety,
limits allocation of fault to those who actively assert
claims, offensively or defensively, as parties in the
litigation or who have settled by release or agreement.
When the statute states that the trier-of-fact shall
consider the conduct of “each party at fault,” such phrase
means those parties complying with the statute as named
parties to the litigation and those who have settled prior
to litigation, not the world at large.
Id. at 900. Likewise, a year later, the court of appeals stated:
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
13
shall determine and state in the judgment each party’s
equitable share of the obligation to each claimant in
accordance with the respective percentages of fault.
(4) A release, covenant not to sue, or similar
agreement entered into by a claimant and a person liable,
shall discharge that person from all liability for
contribution, but it shall not be considered to discharge
any other persons liable upon the same claim unless it so
provides. However, the claim of the releasing person
against other persons shall be reduced by the amount of
the released persons’ equitable share of the obligation,
determined in accordance with the provisions of this
section.
With the exception of Garlock, Inc. and Keene Building
Products Corporation in Beckmann, and Celotex Corporation
and Eagle-Picher Industries, Inc. in Rogers, each of the
corporations named in the jury instructions in both cases was
a party to the action, a dismissed defendant, or a settling
tortfeasor. In both cases, the plaintiffs argue that all of the
defendants included in the “others” category were improper
because Owens-Corning produced no evidence that these
parties were at fault or that exposure to their products caused
the decedents’ mesothelioma and that the evidence of record
was insufficient to support a finding of liability against any of
them.
Section 411.182 and the relevant Kentucky case law
decided both before and after the enactment of the statute
indicate that the court is required to instruct the jury to
apportion liability to the parties to the case, including
plaintiffs, defendants, and third-party defendants, and to
parties who have settled or otherwise “bought their peace” by
an agreement described in subsection 4. We begin our
analysis of section 411.182 with a brief discussion of those
cases decided before the statute was enacted in order to place
the statute in its proper historical context.

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14 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
Nos. 98-5371/5376
In Orr v. Coleman, 455 S.W.2d 59, 61 (Ky. Ct. App. 1970),
the Kentucky Court of Appeals held that Ky. Rev. Stat.
§ 454.040, which granted juries the discretion either to
apportion fault among joint tortfeasors or to impose joint
damages, allowed apportionment of fault to any named
defendant who settled before trial. The Kentucky Supreme
Court subsequently extended Orr in Daulton v. Reed, 538
S.W.2d 306, 308 (Ky. 1976), and required apportionment of
fault to defendants against whom claims had been dismissed
“whatever may have been the reason,” so long as there was an
“active assertion of a claim.” Id. Thus, under Orr and
Daulton, the jury’s task of apportioning liability extended to
settling named defendants and dismissed defendants.
Consistent with Daulton, the Supreme Court of Kentucky, in
Prudential Life Insurance Co. v. Moody, 696 S.W.2d 503,
504 (Ky. 1985), held that apportionment of 50% of the fault
to a party ultimately adjudicated immune under the statute of
limitations was appropriate.
In Floyd v. Carlisle Construction Co., 758 S.W.2d 430 (Ky.
1988), which was decided contemporaneously with the
Kentucky Legislature’s enactment of section 411.182, the
Kentucky Supreme Court reviewed the case law and held that
a nonparty tortfeasor who settled his claims with the plaintiff,
or was dismissed, was to be treated as a party for
apportionment purposes, although apportionment would not
impose any liability on nonparties. The Floyd court explained
the significance of its earlier cases on apportionment:
The basis for these holdings is the active assertion of
a claim against joint tortfeasors. If there is an active
assertion of a claim against joint tortfeasors, and the
evidence is sufficient to submit the issue of liability to
[sic] each, an apportionment instruction is required
whether or not each of the tortfeasors is a party-defendant
at the time of trial.
A tortfeasor who is not actually a defendant is
construed to be one for purposes of apportionment if he
Nos. 98-5371/5376 Barnes, et al. v. Owens-Corning
Fiberglas Corp.
15
has settled the claim against him or if he was named as a
defendant in the plaintiff’s complaint even though the
complaint was subsequently dismissed as to him.
Id. at 432. And so, apportionment of fault to “a joint
tortfeasor with whom the plaintiff ha[d] settled but who was
not named as a party defendant by the plaintiff and whom the
defendant did not name as a third-party defendant,” id. at 430,
was appropriate. The Floyd court noted that the case arose
after Hilen v. Hays, 673 S.W.2d 713 (Ky. 1984), in which the
court abandoned contributory negligence and adopted
comparative negligence in the name of “simple fairness
[which] required[] ‘liability for any particular injury in direct
proportion to fault.’” Floyd, 758 S.W.2d at 432 (citation
omitted). Floyd, although it did not apply section 411.182, is
the only Kentucky apportionment case discussed in the
parties’ briefs on appeal.
After the enactment of section 411.182, the Kentucky
Supreme Court, in Dix & Associates Pipeline Contractors,
Inc. v. Key, 799 S.W.2d 24, 29 (Ky. 1990), acknowledged that
the statute expressly requires apportionment of third-party
defendants’ liability. However, the Kentucky Court of
Appeals later declined to construe section 411.182 to include
nonparties, as it might have done, considering the Floyd
court’s reference to requiring an apportionment instruction
“whether or not each of the tortfeasors is a party-defendant at
the time of trial.” Floyd, 758 S.W.2d at 432. In Bass v.
Williams, 839 S.W.2d 559 (Ky. Ct. App. 1992), the court of
appeals concluded that “the trial court erred when it instructed
the jury to consider the duties of [nonparty] Ralph Bass in
[apportioning liability].” Id. at 564.
KRS 411.182 applies to persons named as parties,
regardless of how named and those persons who bought
their peace from the litigation by way of releases or
agreements. These persons affected by the statute are
explicitly denominated, and Ralph Bass does not fit into
any of the described classifications. Williams urges us to

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