## Facts

- Alfred T. Kirk worked as a painter at the New York Shipyard in Camden, New Jersey, during the late 1950s and early 1960s and allegedly inhaled asbestos dust from defendants’ products.
- Kirk later developed malignant mesothelioma and died in 1988.
- Sarah A. Kirk sued multiple asbestos product manufacturers and suppliers for wrongful death and related claims under negligence and product-liability theories.
- By trial, various defendants had settled or become bankrupt; Owens-Corning Fiberglas Corp. (OCF) was the principal remaining defendant and the sole appellant.
- A jury returned a verdict for the plaintiff exceeding $2 million, and the district court awarded delay damages under Pennsylvania Rule of Civil Procedure 238.

## Issues

1. Whether the district court abused its discretion by denying OCF’s challenges for cause to two prospective jurors who showed bias against the defense.
2. Whether forcing a party to use peremptory challenges to remove jurors who should have been removed for cause impairs the statutory right to peremptory challenges under 28 U.S.C. § 1870, and whether reversal is automatic or requires a showing of prejudice.
3. Whether the district court erred by admitting (a) prior expert testimony from an unrelated state-court asbestos case and (b) interrogatory answers of a co-defendant that settled before trial.
4. Whether the district court erred in awarding delay damages under Pa. R. Civ. P. 238 when some delay resulted from a judicial stay.

## Decision

- The Third Circuit reversed and remanded for a new trial on liability and damages.
- The district court abused its discretion in refusing to excuse two biased jurors for cause.
- OCF did not waive its claim that its peremptory challenges were impaired.
- Impairment occurred because OCF used peremptory challenges to remove jurors who should have been struck for cause; this required per se reversal without proof of actual prejudice.
- The district court erred as a matter of law by admitting the prior testimony of an out-of-court expert from unrelated litigation and by admitting interrogatory responses of a settling co-defendant against OCF.
- The district court did not err in awarding Rule 238 delay damages where the plaintiff was not responsible for delay attributable to a judicial stay.

## Legal Principles

- A trial court abuses its discretion when it denies a challenge for cause despite voir dire answers demonstrating bias requiring removal.
- A party’s statutory right to peremptory challenges under 28 U.S.C. § 1870 is impaired when the party must use peremptories to remove jurors who should have been excused for cause.
- Impairment of the statutory right to peremptory challenges warrants automatic reversal; the appellant need not show that the seated jury was actually prejudiced.
- Prior expert testimony from unrelated litigation is inadmissible against a party absent a valid evidentiary basis under the hearsay rules and proper foundation.
- Interrogatory answers of a settling co-defendant are not admissible as substantive evidence against a remaining defendant absent a valid non-hearsay theory or hearsay exception.
- Under Pa. R. Civ. P. 238, delay damages may be awarded when the plaintiff is not responsible for the relevant period of delay, including delay caused by a judicial stay.

## Conclusion

The Third Circuit vacated the plaintiff’s verdict and ordered a new trial because the district court’s failure to strike biased jurors for cause impaired OCF’s statutory peremptory challenges and because key hearsay evidence was improperly admitted, while also holding that Rule 238 delay damages were not barred by court-caused delay not attributable to the plaintiff.


Kirk v. Raymark Indus., Inc., 61 F.3d 147 (3d Cir. 1995)