       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 ROGERS BARNES,
                            
LISA BEAN, JOHN EDWARD
                            
ROGERS, Co-Executors of the
                            
                                       Nos. 98-5371/5376
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-CORNING FIBERGLAS

       Defendant-Appellee. 
CORPORATION,
                            
                           1

      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


                             1
2    Barnes, et al. v. Owens-Corning        Nos. 98-5371/5376
     Fiberglas Corp.

    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
26 Barnes, et al. v. Owens-Corning         Nos. 98-5371/5376       Nos. 98-5371/5376       Barnes, et al. v. Owens-Corning        3
   Fiberglas Corp.                                                                                           Fiberglas Corp.

Owens-Corning that the complaints introduced in evidence             • Whether the district court erred in allowing Owens-
are relevant to causation and sufficiently probative to survive        Corning to read portions of the plaintiffs’ complaints
Rule 403 scrutiny, although the district court’s decision not to       into evidence.
exclude nonparty manufacturers had some potential for
confusing the jury. We do not believe the jury was confused        For the following reasons, we affirm the district court’s
given the paucity of the evidence of Owens-Corning’s fault         judgment in each case.
found in these cases and given further its decision to allocate
40% liability in the Becht case. In Williams, 790 F.2d 552,                                       I.
another toxic tort case involving toxic chemical exposure
rather than asbestos exposure, this court reversed the district      The decedents in these two cases, Leroy Beckmann and
court’s decision not to allow into evidence a prior complaint      Edward D. Rogers, worked with asbestos for many years.
claiming the injuries alleged were caused by a different           Beckmann worked for Anaconda Aluminum in Louisville,
defendant. There is no principled reason to treat differently      Kentucky, from 1963 to 1973 as a general laborer and a
the allegations here, that other defendants were jointly liable.   maintenance machinist, and at Brown & Williamson from
Moreover, in Williams, we rejected a similar argument,             1973 to 1982 as a maintenance worker. Rogers worked in the
namely, that the complaints were merely to preserve the            whiskey filtration department at Barton Brands Distillery in
ability to discover the proper defendant: “The plaintiff's         Kentucky from 1959 to 1990.              Both men died of
argument that the statements were made merely to preserve          mesothelioma, an asbestos-related form of lung cancer. The
legal rights may be quite persuasive, but should have been         plaintiffs are the personal representatives for their respective
made to the jury.” Id. at 556.                                     decedent’s estates. For the sake of clarity, we refer to the
                                                                   “Barnes” case hereafter by the name of the decedent,
                              IV.                                  “Rogers.”

  For the foregoing reasons, we AFFIRM the judgment                   The Beckmann estate sued a total of 18 manufacturers and
entered by the district court in each case.                        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
4   Barnes, et al. v. Owens-Corning        Nos. 98-5371/5376       Nos. 98-5371/5376      Barnes, et al. v. Owens-Corning 25
    Fiberglas Corp.                                                                                         Fiberglas Corp.

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

products. The jury was entitled to believe this evidence, and         The Beckmann and Rogers plaintiffs filed motions for a
accepting it would not be unreasonable.                             new trial on the apportionment issue, arguing that the verdicts
                                                                    were against the great weight of the evidence; that the court’s
  Second, on our review of the evidence of record, as               instructions improperly provided for allocation of fault to
described in part III.A. above, we find that the jury’s verdicts    parties against whom no evidence of fault was presented; and
as they related to Owens-Corning were not unreasonable.             that the court erred in admitting the plaintiffs’ complaints into
Indeed, had the jury found Owens-Corning 0% liable in both          evidence. The district court denied the motions, finding that
cases, we would not be free to disturb such a finding on this       the jury instructions were correct and that the apportionment
record.                                                             was “within the realm of reason.”
   Finally, we note that the plaintiffs have failed to identify                                   II.
any portion of the record indicating that they timely objected
to the jury instructions pursuant to Fed. R. Civ. P. 51. Thus,        During the relevant time period, Owens-Corning
any error would have to be sufficiently egregious to satisfy the    manufactured and distributed an asbestos-based insulation
plain-error rule. Adam, 130 F.3d at 226, and we find none in        product known as Kaylo that was either installed or removed
either case.                                                        in areas in which each plaintiff worked. In challenging the
                                                                    jury’s verdicts, the plaintiffs argue that the evidence revealed
  Reading the trial court’s instructions as a whole, we             that the decedents were exposed to or worked with Kaylo to
conclude that they adequately informed the jury of the              a far greater extent than is reflected by the jury’s verdicts.
relevant considerations and provided a basis for its decisions.     Thus, we must burden our opinion with a summary of the
Although the district court erroneously included parties in the     facts in evidence relating to each decedent’s exposure to
instructions against whom the evidence was lacking, the             asbestos, generally, and Owens-Corning’s product, Kaylo,
instructions, when viewed as a whole, were not confusing,           specifically.
misleading, or prejudicial in terms of the jury’s ultimate task
of assessing Owens-Corning’s liability. Thus, we conclude                       A. Beckmann Exposure Evidence
that any error in the manner in which the court instructed the
jury was harmless.                                                    Two witnesses, Lowell Collard and Ronald Spainhour,
                                                                    testified as to the presence of Kaylo at Anaconda Aluminum.
                               C.                                   Collard testified that he was installing Kaylo at Anaconda
                                                                    Aluminum in the mid-1960s, and that it was very dusty.
   Finally, we turn to the issue whether the district court erred   Collard did not know Beckmann and did not know whether
in allowing Owens-Corning to read portions of the plaintiffs’       Beckmann was in the part of the plant where asbestos
complaints into evidence. This court generally reviews a            products were used. Spainhour worked directly with
defendant’s challenge to the district court’s decision to admit     Beckmann and testified that he could not identify any Owens-
evidence for abuse of discretion. See, e.g., United States v.       Corning asbestos-containing products that were in use during
Sanders, 95 F.3d 449, 453 (6th Cir. 1996). The parties have         Beckmann’s tenure in the 1960s. He did describe some
not directly presented the issue as a hearsay problem that,         insulation that he and Beckmann used in rebuilding industrial
which, since it would involve application of Fed. R. Evid.          furnaces, but none of the asbestos products he identified was
801, would call for a de novo review. See United States v.
Jinadu, 98 F.3d 239, 244 (6th Cir. 1996).
6   Barnes, et al. v. Owens-Corning      Nos. 98-5371/5376      Nos. 98-5371/5376      Barnes, et al. v. Owens-Corning 23
    Fiberglas Corp.                                                                                      Fiberglas Corp.

an Owens-Corning product.       He did not see Kaylo at         circumstantial nature of the evidence against Owens-Corning,
Anaconda Aluminum.                                              the jury could reasonably have inferred that the exposure to
                                                                Owens-Corning products was sufficiently slight to warrant
  Several witnesses testified regarding Beckmann’s time at      only a nominal apportionment of liability.
Brown & Williamson. David Parker testified that he saw
insulation workers taking asbestos-based insulation out of         In Rogers, the decedent answered interrogatories and gave
Owens-Corning boxes and that Owens-Corning was the only         a deposition before his death from mesothelioma. In his
name he ever saw on any of the boxes. Although Parker came      answers to Owens-Corning’s interrogatories, Rogers stated
to know Beckmann later, he never knew him or saw him at         that “[d]uring the course of [his] career, he was exposed to
Brown & Williamson, and he had no knowledge regarding           asbestos containing products manufactured by the
Beckmann’s exposure or lack thereof to asbestos, although he    defendants.” In his responses to Owens-Corning’s requests
assumed Beckmann was exposed because of the nature of the       for admissions, Rogers specifically admitted exposure to
work he did. Although Parker testified that he saw the name     asbestos-containing products manufactured by A.P. Greene,
Owens-Corning on insulation boxes, he also testified that he    Garlock, Johns-Manville, W.R. Grace, Owens-Illinois, and
never saw Kaylo at Brown & Williamson. He also testified        Pittsburgh Corning, all of whom were settling defendants
that the plaintiffs’ counsel suggested the name Kaylo and       appearing on the verdict form. Rogers also admitted exposure
Owens-Corning to him, but did not mention other                 to asbestos-containing products manufactured by nonsettling
manufacturers.                                                  nonparty Celotex, who was incorrectly included in the verdict
                                                                form. Rogers also specifically admitted as to each of these
  Charles Fleischer testified that Kaylo was in use at Brown    defendants that “such exposure was a substantial factor in
& Williamson and that it was very dusty. Fleischer also         causing his alleged asbestos-related injury.” These responses
identified other asbestos products in use at Brown &            were introduced at trial and read to the jury. Moreover,
Williamson that were manufactured by other defendants.          Rogers testified unequivocally that he worked on a daily basis
However, the plaintiffs admit that Fleischer worked at Brown    with raw asbestos, which the evidence indicated Owens-
& Williamson from 1959-1964 and 1968-1971, whereas              Corning never manufactured. He identified Owens-Illinois as
Beckmann did not begin working there until 1973.                the manufacturer that he recalled, while also referring to a
                                                                company called “Earthal” that is not involved in the case.
  Collard testified that he installed asbestos at Brown &       Rogers identified Celotex products and a product he referred
Williamson from 1956-1962, and that the materials were          to as “Gold Bond,” but never mentioned Kaylo or Owens-
usually ordered from Owens-Corning. However, he also            Corning in his testimony. The jury saw Rogers’s video
identified other manufacturers whose products were used at      deposition at trial. Finally, the plaintiffs’ main witness in
Brown & Williamson—manufacturers who were also                  Rogers, William Clark, was unable to differentiate between
defendants. The plaintiffs’ brief incorrectly states that       Owens-Illinois and Owens-Corning in his testimony about
Collard worked at Brown & Williamson in the 1970s when          Rogers’s alleged exposure.
Beckmann was there; he did not.
                                                                  In both cases, the defendant presented evidence that
   Robert Kinsella testified that his company installed Kaylo   Owens-Corning had warning labels on its Kaylo product as
at job sites listed in an exhibit he was handed at his video    early as 1966, and that dust counts performed on Kaylo
deposition. He said the list was “pretty much” accurate. The    showed it to be safe in comparison to its competitors’
22 Barnes, et al. v. Owens-Corning          Nos. 98-5371/5376       Nos. 98-5371/5376       Barnes, et al. v. Owens-Corning        7
   Fiberglas Corp.                                                                                            Fiberglas Corp.

  injury and death. If you so find, you will determine the          list included Brown & Williamson, but Kinsella did not
  percentage of total fault attributable to the exposure to         provide any specific dates or times when Kaylo may have
  the other product or products.                                    been in use.
    You will determine from the evidence what percentage              Charles DuPont testified that he worked with Beckmann at
  of total fault for the decedent’s injury was attributable to:     Brown & Williamson and that they usually worked the second
                                                                    or third shift, whereas the insulators worked the first shift and
    1.   The decedent’s failure to use ordinary care for his        cleaned up after themselves before going off duty. DuPont
         own safety;                                                testified that he and Beckmann occasionally removed small
    2.   Defendant’s asbestos-containing products; and              portions of insulation, but he could not identify the name or
    3.   Asbestos-containing products manufactured or               manufacturer.
         distributed by other companies.
                                                                                   B. Rogers Exposure Evidence
    In determining the percentage of fault, you shall
  consider both the nature of the conduct of each party at            Rogers testified in a video deposition before his death. He
  fault and the extent of the causal relationship between the       testified that he was “pretty sure” he had been exposed to
  conduct and the damage claimed.                                   asbestos pads made by Celotex or Owens-Illinois Glass Co.
                                                                    Rogers clearly testified that he was exposed to “raw asbestos”
(Emphasis added.) We presume the jury followed the                  routinely while using it as a filtrate. Rogers identified the
instructions as they were given and “determine[d] from the          manufacturer as Owens-Illinois or Earthal. Another witness,
evidence” whether the decedents were exposed to other               Jerry Helser, testified that Owens-Corning never
companies’ products, the extent to which such exposure              manufactured or distributed raw asbestos. Rogers also
caused the decedents’ injuries, and the extent of the total fault   testified that other employees used “Gold Bond” insulation
attributable to companies other than Owens-Corning.                 and an unidentified “mud” product that may have contained
                                                                    asbestos. Rogers stated that the “Gold Bond” was in a four-
  In Beckmann, witness Collard identified asbestos products         foot by eight-foot sheet. However, according to Kinsella,
in use at Brown & Williamson that were manufactured by              Kaylo came in a two-inch by 12-inch by 36-inch block.
Johns-Manville, Pittsburgh Corning, and Philip Carey                Rogers did not testify that he was exposed to Kaylo or
Manufacturing Co.       Owens-Corning presented expert              otherwise attribute exposure to Owens-Corning in his video
testimony that indicated that the Pittsburgh Corning and            deposition.
Philip Carey products could not be used safely, while Kaylo
could be used safely. Moreover, in response to discovery              William Clark worked at Barton Brands from 1958 through
requests, Beckmann admitted at least possible exposure to           the time of trial, and he worked directly with Rogers. He
products manufactured by Johns-Manville, Owens-Illinois,            testified that raw asbestos was routinely used at Barton
Pittsburgh Corning, and W.R. Grace. Finally, none of the            Brands. He saw Rogers working with asbestos insulation, and
evidence submitted in Beckmann supported a direct link              he identified Owens-Corning and Owens-Illinois as the
between Beckmann’s presence at Anaconda or Brown &                  manufacturers. He recalled that sheet insulation was ground
Williamson and the presence of Kaylo in the same area as            up for use in filtration when it was not used up in insulation
Beckmann worked.         Because of the indirect and                activity and that Rogers was extensively exposed because he
8   Barnes, et al. v. Owens-Corning        Nos. 98-5371/5376       Nos. 98-5371/5376        Barnes, et al. v. Owens-Corning 21
    Fiberglas Corp.                                                                                           Fiberglas Corp.

used the filtration asbestos almost every day. However, on         that a reasonable juror could conclude that apportionment of
cross-examination, Clark was unable to differentiate between       some liability to that defendant is justified, thereby satisfying
Owens-Corning and Owens-Illinois. He also testified that the       the requirement that “the evidence is sufficient to submit the
sheet insulation was used at Barton Brands only until the early    issue of liability,” and ensuring consistency with the
1960s.                                                             underlying premise of the comparative fault system to provide
                                                                   “‘liability for any particular injury in direct proportion to
  In his video deposition, Rogers was unable to state how          fault.’” Floyd, 758 S.W.2d at 432 (citation omitted).
often extra insulation was ground up for filtration, and he
could specifically identify only one product as Owens-                None of this is simple, but our ultimate resolution of this
Corning—a small filter pad that emitted no dust when it was        issue is further complicated by the fact that the district court,
installed and was removed wet, that is, dustless. This was the     apparently in response to the plaintiffs’ objections to the
only product Rogers associated with Owens-Corning                  defendants’ proposed instructions, grouped the corporations
specifically, and it was the only Owens-Corning product on         other than Owens-Corning together in a category designated
the job site.                                                      “others which may include.” In its verdict forms, the jury
                                                                   allocated 0% of fault to the decedents and 5% and 2% to
                              III.                                 Owens-Corning in Beckmann and Rogers, respectively, but
                                                                   made no numerical allocation whatever to any specific
                              A.                                   composition the court had listed under the category of
                                                                   “others.” Instead, the jury simply allocated 95% and 98%,
  The plaintiffs argue that the district court erred in denying    respectively, of fault, in gross, to the entire category of
their motions for a new trial on the basis that the jury’s         “others.” Under these circumstances, it is impossible for this
apportionment of liability was against the great weight of the     court to determine whether the jury actually apportioned
evidence. The district court ruled, without providing findings     liability to any particular defendant in the “others” category,
of fact or conclusions of law, that “the jury’s apportionment      and the question becomes whether the evidence was sufficient
of liability was within the realm of reason.”                      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
                               1.                                  overturn the jury’s verdicts for three reasons.
   This court reviews a district court’s decision to deny a          First, there was some evidence in the record in each of the
motion for a new trial for an abuse of discretion. See Logan       cases from which the jury could reasonably have determined
v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989).         that parties other than Owens-Corning, including those plainly
We will reverse such a decision only if we have “a definite        erroneously included in the verdict forms, were primarily at
and firm conviction that the trial court committed a clear error   fault. In both cases, the proofs focused on exposure. The
of judgment.” Id.                                                  district court instructed the jury as follows in each case:
   A court may set aside a verdict and grant a new trial when          You will determine from the evidence whether the
it “‘is of the opinion that the verdict is against the clear         decedent was exposed to one or more similar products
weight of the evidence,’” Duncan v. Duncan, 377 F.2d 49, 52          manufactured or distributed by a company other than the
(6th Cir. 1967) (citation omitted); however, new trials are not      defendant which was a substantial factor in causing his
to be granted on the grounds that the verdict was against the
20 Barnes, et al. v. Owens-Corning            Nos. 98-5371/5376        Nos. 98-5371/5376       Barnes, et al. v. Owens-Corning        9
   Fiberglas Corp.                                                                                               Fiberglas Corp.

  to the defendants, it would doubtless have been error to             weight of the evidence “unless that verdict was
  include them in the apportionment instructions.                      unreasonable,” Holmes v. City of Massillon, 78 F.3d 1041,
                                                                       1047 (6th Cir. 1996). Thus, if a reasonable juror could reach
Id. at 228 n.6 (emphasis added). A district court would err if         the challenged verdict, a new trial is improper. See id. at
it instructed a jury to apportion liability to a third-party           1048. “‘[C]ourts are not free to reweigh the evidence and set
defendant where there had been a previous determination that           aside the jury verdict merely because the jury could have
dismissal was appropriate because the evidence was                     drawn different inferences or conclusions or because judges
insufficient to support a finding of liability.                        feel that other results are more reasonable.’” Duncan, 377
                                                                       F.2d at 52 (citation omitted). Kentucky courts follow a
   We recognize that no Kentucky case has directly addressed           substantially similar policy of reluctance to overturn the jury’s
the question whether fault may be apportioned to a settling or         verdict. See, e.g., Spears v. Burchett, 289 S.W.2d 731, 735
dismissed party where the evidence is insufficient to support          (Ky. Ct. App. 1956).
a finding of liability, absent a previous determination.
However, we are confident, in light of the statute’s                                                  2.
requirement that the jury consider both conduct and causation
in determining fault, the Floyd and Kevin Tucker &                        We think it is clear that a reasonable juror could have
Associates courts’ references to the sufficiency of the                apportioned liability as these jurors did. Kentucky courts
evidence, and this court’s discussion of dismissed third-party         adjudicate products liability cases according to principles of
defendants in Adam, that Kentucky courts would conclude                strict liability. See, e.g., Nichols v. Union Underwear Co.,
that apportionment of fault to defendants where the evidence           602 S.W.2d 429, 433 (Ky. 1980). Thus, a defendant’s “fault”
is insufficient to support liability is error. Accord Whatley v.       is determined according to the unsafe or unreasonable
Armstrong World Indus., Inc., 861 F.2d 837, 839 (5th Cir.              condition of the product. See id. The dispositive issue
1988). We conclude that the Kentucky cases assume the                  presented to the jury was whether exposure to Owens-
point, and that the statute clearly requires sufficient evidence       Corning’s asbestos products caused the decedents’
to support a finding of fault as a prerequisite to apportionment       mesothelioma, and the jury apparently found the evidence in
under subsection 2.                                                    these cases too weak to support an inference of more than
                                                                       minimal exposure to any Owens-Corning product.
   Section 411.182 applies in “tort actions . . . involving fault      Significantly, in Becht, which was also consolidated with
of more than one party.” The jury must apportion fault                 these cases for trial but appealed and decided separately, the
considering evidence of conduct and causation. If the                  jury apportioned 40% liability to Owens-Corning, indicating
evidence is such that no reasonable juror could determine a            its ability to evaluate the evidence in each case independently
given party is at fault, logic dictates that the jury should not be    for the purpose of assessing the level of exposure to Owens-
instructed to apportion fault to that party. Under section             Corning’s products.
411.182 a district court errs to the extent that it instructs a jury
to apportion liability to parties where the evidence adduced at          Several witnesses testified in Beckmann, and their evidence
trial is insufficient as a matter of law to support a finding of       was equivocal as to whether Beckmann was exposed to Kaylo
liability against those parties. In order to successfully obtain       or any Owens-Corning asbestos product. The evidence was
an apportionment instruction as to a person covered by                 highly circumstantial, inviting the jury to infer a link between
section 411.182, the party seeking the instruction must show           the presence of Kaylo at Beckmann’s places of employment
10 Barnes, et al. v. Owens-Corning        Nos. 98-5371/5376      Nos. 98-5371/5376        Barnes, et al. v. Owens-Corning 19
   Fiberglas Corp.                                                                                          Fiberglas Corp.

without direct testimony of exposure. The causal connection        if there is never an “active assertion of a claim” against
between Beckmann’s mesothelioma and exposure to Owens-             the third-party, liability cannot be apportioned to him. . . .
Corning products, if it was established at all, was highly         Of course, if the third-party plaintiff's claim is dismissed,
speculative. In Rogers, although the jury awarded minimal          the plaintiff may ordinarily amend his complaint to make
damages against Owens-Corning, apparently based upon the           the ex-third-party defendant a defendant.
decedent’s extensive exposure to raw asbestos or ground up
sheet insulation and the notable absence of other evidence       842 S.W.2d at 874 n.5 (citation omitted). We found it
linking exposure to Owens-Corning’s products, the evidence       implicit in this footnote that “if there has ever been an active
was such that a finding of little or no liability on Owens-      assertion of a claim against the third party—if the third party
Corning’s part would have been entirely reasonable.              has been impleaded by the original defendant, in other
                                                                 words—liability can be apportioned to the third-party
   The plaintiffs’ contention that there was no evidence that    defendant notwithstanding a dismissal prior to trial.” Adam,
the other manufacturers’ products were at fault is inaccurate.   130 F.3d at 228. In support, we referenced the following
In Beckmann, Johns-Manville, a third-party defendant, and        language as explicitly making the point:
Eagle Picher, an original defendant named in the Beckmann
complaint, were among the manufacturers identified in the          “[I]f the evidence at trial shows that [the general
testimony. Moreover, in discovery, Beckmann admitted at            contractor] caused some portion of the City’s damages,
least possible exposure to products manufactured by Johns-         Tucker will be entitled to an apportionment instruction.
Manville, Owens-Illinois, W.R. Grace & Co., and Pittsburgh         [The general contractor] is entitled to be dismissed,
Corning Corporation. In Rogers, witnesses identified Owens-        however, because they cannot be liable to Tucker under
Illinois as the main manufacturer of products at Brown &           any circumstances.”
Williamson, and Rogers admitted extensive exposure to a raw
asbestos product that Owens-Corning did not manufacture.         Id. at 229 (quoting Kevin Tucker & Assocs., 842 S.W.2d at
Rogers never mentioned Owens-Corning or Kaylo in his             875) (some emphasis added). Thus, we concluded in Adam
testimony, and the jury could have reasonably concluded that     that the district court’s dismissal of two third-party
the sheet insulation identified as the product ground for        defendants, Med-Tech and Musick, before trial, “on grounds
filtration was something other than Kaylo, which came in         independent of their liability to the plaintiffs [did not]
block form. Additionally, in discovery, Rogers admitted          preclude[] any apportionment of fault to them.” Id. at 227
exposure to products manufactured by Johns-Manville,             (emphasis added).
Garlock, Celotex, W.R. Grace, A.P. Greene Refractories Co.,
Owens-Illinois, and Pittsburgh Corning.                            The converse of the above statement would also apply: If
                                                                 a third-party defendant were dismissed before trial on the
   In Strickland v. Owens-Corning Fiberglas Corp., 142 F.3d      ground that it could not be held legally liable to the plaintiffs
353, 356 (6th Cir. 1998), the jury allocated 70% of the fault    for their injuries, apportionment of fault to that third-party
to Owens-Corning. We vacated the jury’s allocation of fault      defendant would be inappropriate. Indeed, in Adam we
and remanded the case with instructions that Owens-              observed:
Corning’s liability be capped at 50% because there was no
“basis for distinguishing [Owens-Corning’s] conduct as more           If Med-Tech and Musick had been properly dismissed
blameworthy” than Owens-Illinois’s conduct where Owens-            on the ground that there was no evidence to support a
                                                                   finding that they were liable to the plaintiffs, as opposed
18 Barnes, et al. v. Owens-Corning          Nos. 98-5371/5376        Nos. 98-5371/5376        Barnes, et al. v. Owens-Corning 11
   Fiberglas Corp.                                                                                              Fiberglas Corp.

  In determining the percentages of fault, the trier of fact         Corning was distributing a product manufactured by Owens-
  shall consider both the nature of the conduct of each              Illinois. Id. Strickland adds little to our analysis here, where
  party at fault and the extent of the causal relation               there was some basis in the evidence for the jury’s
  between the conduct and the damages claimed.                       conclusion. Ironically, the plaintiffs in this case argue that the
                                                                     jury’s verdicts were unreasonable, while the plaintiff in Becht,
(Emphasis added.) This language presumes that, before                represented by the same counsel, argues that the same jury
apportioning liability to any party, the jury will find that party   reasonably concluded that Owens-Corning was 40% at fault.
“at fault” in terms of both aspects of the fault attributed to it.   We agree with Owens-Corning that the evidence of exposure
In this case, the two aspects are (1) the party’s manufacture        to Kaylo in Becht was “less circumstantial” than the evidence
and/or distribution of an unsafe product, and (2) causation,         in Beckmann and Rogers, and we believe that the jury’s
that is, at a minimum, exposure to the unsafe product.               allocation of significantly more fault to Owens-Corning on
Consistent with this understanding of the rule, in Floyd, the        stronger evidence in Becht demonstrates that it acted
court explained:                                                     rationally in evaluating the evidence in each case. Thus, we
                                                                     conclude that the district court did not abuse its discretion by
  If there is an active assertion of a claim against joint           refusing to grant a new trial on the basis that the jury’s
  tortfeasors, and the evidence is sufficient to submit the          verdicts in Beckmann and Rogers were within the realm of
  issue of liability to [sic] each, an apportionment                 reason.
  instruction is required whether or not each of the
  tortfeasors is a party-defendant at the time of trial.                                            B.
758 S.W.2d at 432 (emphasis added).                                    The plaintiffs also argue that the district court’s jury
                                                                     instructions on the allocation of fault erroneously included
  In Kevin Tucker & Associates, the Kentucky Court of                parties about whom little or no evidence of fault was
Appeals affirmed the trial court’s judgment dismissing a             submitted, and some of whom were never named as
third-party defendant impleaded on a contribution theory             defendants in the complaints.
because the apportionment statute, by establishing a standard
whereby “each tortfeasor’s liability is limited by the extent of                                    1.
his fault,” 842 S.W.2d at 874, precluded a finding that the
third-party defendant could be liable to the defendant “for all         Federal jurisdiction in this case is based on diversity of
or part of the plaintiff’s claim,” Ky. Civ. R. 14. We looked to      citizenship. See 28 U.S.C. § 1332. In a diversity case,
that decision in Adam to determine that the dismissal of third-      “federal law governs our standard of review for determining
party defendants does not “preclude their being included in          whether a jury instruction is prejudicial.” Gafford v. General
the jury instructions on apportionment,” 130 F.3d at 228,            Elec. Co., 997 F.2d 150, 166 (6th Cir. 1993) (internal
relying on the following language in a footnote in Kevin             quotation marks and citations omitted). Our duty is to
Tucker & Associates:                                                 “review jury instructions as a whole to determine whether
                                                                     they adequately inform the jury of the relevant considerations
  [T]hird-party defendants may often be entitled to                  and provide a basis in law for aiding the jury in reaching its
  dismissal on the grounds that they cannot be liable to the         decision.” Jones v. Consolidated Rail Corp., 800 F.2d 590,
  third-party plaintiff. . . . This does not mean that               592 (6th Cir. 1986). We will reverse a jury’s verdict on the
  defendants should not assert these third-party claims; for
12 Barnes, et al. v. Owens-Corning          Nos. 98-5371/5376      Nos. 98-5371/5376       Barnes, et al. v. Owens-Corning 17
   Fiberglas Corp.                                                                                           Fiberglas Corp.

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

  adopt a theory of implied agreement between Betty and              shall determine and state in the judgment each party’s
  Ralph by Betty’s failure to sue Ralph. While we will               equitable share of the obligation to each claimant in
  liberally construe the statute, we believe Williams’               accordance with the respective percentages of fault.
  construction is beyond the bounds of liberality.
                                                                       (4) A release, covenant not to sue, or similar
Id. (emphasis added). Thus, under Floyd, Dix, and Bass,              agreement entered into by a claimant and a person liable,
section 411.182 apportionment encompasses named parties,             shall discharge that person from all liability for
including third-party defendants and parties dismissed for           contribution, but it shall not be considered to discharge
whatever reason, and settling parties or settling nonparties. It     any other persons liable upon the same claim unless it so
does not include nonsettling nonparties. See Kevin Tucker &          provides. However, the claim of the releasing person
Assocs., Inc. v. Scott & Ritter, Inc., 842 S.W.2d 873, 874 (Ky.      against other persons shall be reduced by the amount of
Ct. App. 1992); see also Adam v. J.B. Hunt Transp., Inc., 130        the released persons’ equitable share of the obligation,
F.3d 219, 227-28 (6th Cir. 1997).                                    determined in accordance with the provisions of this
                                                                     section.
   The Kentucky Court of Appeals adopted this reading of the
statute two years later in Baker v. Webb, 883 S.W.2d 898 (Ky.        With the exception of Garlock, Inc. and Keene Building
Ct. App. 1994). There, in connection with an automobile            Products Corporation in Beckmann, and Celotex Corporation
collision causing injury to the plaintiff, the trial court         and Eagle-Picher Industries, Inc. in Rogers, each of the
instructed the jury as to the legal duties of the defendant, the   corporations named in the jury instructions in both cases was
plaintiff, and the plaintiff’s husband, who was not a party but    a party to the action, a dismissed defendant, or a settling
was driving one of the vehicles when the plaintiff was injured,    tortfeasor. In both cases, the plaintiffs argue that all of the
and included the plaintiff’s husband in the apportionment          defendants included in the “others” category were improper
instruction. The court of appeals reversed the jury’s              because Owens-Corning produced no evidence that these
apportionment of 40% liability to the plaintiff’s husband,         parties were at fault or that exposure to their products caused
concluding that section 411.182 does not apply to nonsettling      the decedents’ mesothelioma and that the evidence of record
nonparties:                                                        was insufficient to support a finding of liability against any of
                                                                   them.
  [T]he thrust of KRS 411.182, considered in its entirety,
  limits allocation of fault to those who actively assert            Section 411.182 and the relevant Kentucky case law
  claims, offensively or defensively, as parties in the            decided both before and after the enactment of the statute
  litigation or who have settled by release or agreement.          indicate that the court is required to instruct the jury to
  When the statute states that the trier-of-fact shall             apportion liability to the parties to the case, including
  consider the conduct of “each party at fault,” such phrase       plaintiffs, defendants, and third-party defendants, and to
  means those parties complying with the statute as named          parties who have settled or otherwise “bought their peace” by
  parties to the litigation and those who have settled prior       an agreement described in subsection 4. We begin our
  to litigation, not the world at large.                           analysis of section 411.182 with a brief discussion of those
                                                                   cases decided before the statute was enacted in order to place
Id. at 900. Likewise, a year later, the court of appeals stated:   the statute in its proper historical context.
14 Barnes, et al. v. Owens-Corning         Nos. 98-5371/5376       Nos. 98-5371/5376       Barnes, et al. v. Owens-Corning 15
   Fiberglas Corp.                                                                                           Fiberglas Corp.

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