Santiago v. Sherwin Williams Co.

• Decision Date: 08 April 1993
• Docket Number: No. 92-2263,92-2263
• Citation: 3 F.3d 546
• Parties: 24 Envtl. L. Rep. 20,805, Prod.Liab.Rep.(CCH)P. 13,603 Monica SANTIAGO, Plaintiff, Appellant, v. SHERWIN WILLIAMS COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 546

3 F.3d 546

24 Envtl. L. Rep. 20,805, Prod.Liab.Rep.(CCH)P. 13,603

Monica SANTIAGO, Plaintiff, Appellant, v. SHERWIN WILLIAMS COMPANY, et al., Defendants, Appellees.

No. 92-2263.

United States Court of Appeals, First Circuit.

Heard April 8, 1993.

Decided Sept. 10, 1993.

Jonathan Shapiro, with whom Stern, Shapiro, Rosenfeld & Weissberg, Robert J. Doyle, Kehoe, Doyle, Playter & Novick, Neil T. Leifer, Thornton, Early & Naumes, Boston, MA, Judith Somberg, Johnson & Somberg, Jamaica Plain, MA, Arthur Bryant, and Trial Lawyers for Public Justice, Washington, DC, were on brief, for appellant.

Paul Michael Pohl, with whom Charles H. Moellenberg, Jr., Jones, Day, Reavis & Pogue, Pittsburgh, PA, Thomas J. Griffin, Jr., Loretta Smith, Erik H. Aldeborgh, II, Goodwin, Procter & Hoar, Boston, MA, Dale A. Normington, Dayton, OH, were on brief, for Sherman-Williams Co.

Rory Fitzpatrick, with whom Meghan H. Magruder, Bingham, Dana & Gould, Boston, MA, Donald A. Bright, Los Angeles, CA, were on brief, for Atlantic Richfield Co.

Michael Nilan, with whom G. Marc Whitehead, Janie S. Mayeron, Popham, Haik, Schnobrich & Kaufman, Ltd., Minneapolis, MN, Thomas V. Urmy, Shapiro, Grace & Haber, Boston, MA, were on brief, for SCM Corp. Donald E. Scott, John M. Walker, Kirkland & Ellis, Washington, DC, David B. Garten, Houston, TX, and Janet D. Smith, New York City, were on brief, for NL Industries, Inc.

Mary Morrissey Sullivan, Richard Nahigian, and Sullivan, Sullivan & Pinta, Boston, MA, were on brief, for Lead Industries Ass'n.

David G. Owen, Columbia, SC, on brief, for Business Roundtable and Chamber of Commerce of the U.S., amici curiae.

Stephen S. Ostrach, Emily R. Livingston and New England Legal Foundation, Boston, MA, on brief, for Associated Industries of Massachusetts and New England Legal Foundation, amici curiae.

Before BREYER, Chief Judge, FRIEDMAN, ^* Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

In this appeal, plaintiff-appellant Monica Santiago challenges the district court's entry of summary judgment against her and in favor of defendants-appellees. ¹ In so doing, plaintiff advances three arguments: (1) the legal issues in this appeal should be certified to the Massachusetts Supreme Judicial Court ("SJC"); (2) the district court erred in rejecting plaintiff's market share liability argument; and (3) the court erred in rejecting plaintiff's concert of action claim. After carefully reviewing each of plaintiff's arguments, we affirm.

I. BACKGROUND

Plaintiff was born on November 9, 1972. From the time of her birth until 1978, she and her family resided at 20 Leston Street in Boston. Plaintiff alleges that, during her period of residence, she ingested lead paint that had been applied in layers to the walls and woodwork of her home at various times between 1917, the year of the building's construction, and 1970. The evidence reveals that plaintiff's blood had highly elevated levels of lead by the time plaintiff was one year of age, that the lead reached emergency levels by July 1976, and that, as a consequence, plaintiff had to undergo chelation therapy ² in order to remove the lead from her body. Although plaintiff's early development appeared to progress normally, she has been diagnosed with a hyperactivity-attention disorder and motor skill difficulties which her medical experts attribute to lead poisoning.

Plaintiff initiated this action in November 1987, contending that defendants, or their predecessors in interest, manufactured and marketed all, or virtually all, of the white lead used in the lead paints sold in the United States between 1917 and 1970. Her complaint set forth claims of negligence, breach of warranty, and concert of action. Jurisdiction was premised upon diversity of citizenship. See 28 U.S.C. Sec. 1332.

Plaintiff could not and cannot identify either which, if any, of the defendants are the source of the lead she ingested or when the alleged injury-causing paint may have been applied to the walls and woodwork of her childhood home. ³ She has, however, introduced (1) evidence in the form of expert testimony that lead paint "was at minimum a substantial contributing factor of her lead poisoning;" (2) evidence demonstrating that all of the defendants produced white lead for By memorandum and order dated January 13, 1992, the district court rejected plaintiff's market share claim as a matter of Massachusetts law. In so doing, the court ruled that even if the SJC would recognize market share liability under some scenario, it would not do so if presented with the undisputed facts of this case. See generally Santiago v. Sherwin-Williams Co., 782 F.Supp. 186 (D.Mass.1992). By memorandum and order dated July 2, 1992, the court further ruled that plaintiff's concert of action claim failed as a matter of Massachusetts law because plaintiff could not identify which of the defendants actually had committed the tort. See generally Santiago v. Sherwin-Williams Co., 794 F.Supp. 29 (D.Mass.1992). It is from these rulings that plaintiff now appeals.

                significant portions of the period between 1917 and 1970;  (3) evidence that almost all of the white lead produced for paint between 1917 and 1970 was manufactured by defendants;  and (4) evidence that, between 1930 and 1945, all of the defendants, as members of a trade association known as the Lead Industries Association ("LIA"), "simultaneously coordinat[ed] promotional campaigns to increase white lead consumption in paint and ... work[ed] to neutralize the growing public concern about lead paint poisoning."   On the basis of this evidence, plaintiff sought to dispense with the identification requirement and hold defendants liable under a market share theory.  Plaintiff further argued that defendants were liable for her injuries because of their concerted marketing actions as members of the LIA
                

II. DISCUSSION

A. Certification

As an initial matter, plaintiff has requested that we certify to the SJC questions regarding the viability of market share liability and concert of action as theories of recovery in light of the facts of this case. We note that plaintiff first requested certification in this court, and explicitly stated her opposition to certification at the district court level. Now, having lost below, plaintiff has reversed her position. Unsurprisingly, defendants oppose plaintiff's certification request.

For reasons that are largely self-explanatory, we have held that "one who chooses to litigate [her] state action in the federal forum (as plaintiff did here) must ordinarily accept the federal court's reasonable interpretation of extant state law rather than seeking extensions via the certification process." Croteau v. Olin Corp., 884 F.2d 45, 46 (1st Cir.1989); see also 17A Charles A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal Practice and Procedure Sec. 4248, 176 (2d ed. 1988) (courts "should be slow to honor a request for certification from a party who chose to invoke federal jurisdiction"). The concerns about fundamental fairness and judicial economy that animate this general rule make us considerably less inclined to depart from it when the plaintiff did not request certification before the district court. See Croteau, 884 F.2d at 46.

Here, as will be demonstrated below, the district court's interpretation of Massachusetts law was eminently reasonable. Furthermore, plaintiff, after initially deciding to eschew her prerogative to file this action in state court, actively made her opposition to certification known to the district court. In light of these facts, and given the further fact that it has been over five years since these federal proceedings were initiated, it would be extremely unfair to defendants if we were to allow plaintiff to relitigate the issues at the heart of this lawsuit. Accordingly, plaintiff's request for certification is denied. ⁴

B. Standard of Review

Having dispensed with plaintiff's certification request, we proceed to delineate the parameters of our examination. Summary judgment allows courts to "pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1845, 123 L.Ed.2d 470 (1993). It A fact is only material if it has "the potential to affect the outcome of the suit under the applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). However, our reading of the facts, as derived from the record, is always done " 'in the light most amiable to the nonmovant....' " Lawrence v. Northrop Corp., 980 F.2d 66, 68 (1st Cir.1992) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990)). This includes "indulg[ing] all reasonable inferences" in the nonmovant's favor. Id.

                should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."   Fed.R.Civ.P. 56(c)
                

Our review of a summary judgment ruling is plenary. Garside, 895 F.2d at 48. Furthermore, we are not limited to the reasoning employed by the district court; instead, we may "affirm the entry of summary judgment on any independently sufficient ground made manifest by the record." United States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992).

In addition to examining the facts, a court passing on a summary judgment motion or reviewing a summary judgment determination must, of course, consider the applicable law. When a plaintiff invokes diversity jurisdiction to bring a state law claim in federal court, this survey is somewhat circumscribed, for it is settled that, in ordinary circumstances, a plaintiff who "selects a federal forum in preference to an available state forum may not...