Barwick v. Celotex Corp.

• Decision Date: 07 June 1984
• Docket Number: No. 83-1479,83-1479
• Parties: Arnold G. BARWICK, Appellant, v. The CELOTEX CORPORATION, Keene Corporation, Pittsburgh Corning Corporation, H.K. Porter, Forty-Eight Insulations, Inc., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 946

736 F.2d 946

Arnold G. BARWICK, Appellant, v. The CELOTEX CORPORATION, Keene Corporation, Pittsburgh

Corning Corporation, H.K. Porter, Forty-Eight

Insulations, Inc., Appellees.

No. 83-1479.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 12, 1984.

Decided June 7, 1984.

G. Brinson Williams, Barnwell, S.C. (Joseph F. Rice, Blatt & Fales, Barnwell, S.C., on brief), and Thomas F. Taft, Greenville, N.C. (Vickie Bletso, Taft, Taft & Haigler, Greenville, N.C., on brief), for appellant.

Richard V. Bennett, Winston-Salem, N.C. (William Kearns Davis, Bell, Davis & Pitt, P.A., Winston-Salem, N.C., on brief), J. Victor Bowman, Greensboro, N.C. (Perry Henson, Henson & Henson, Greensboro, N.C., on brief), Thomas N. Barefoot, Manteo, N.C. (James Billings, Smith, Anderson, Blout, Dorsett, Mitchell & Jernigan, Raleigh, N.C., on brief), Fitzhugh E. Wallace, Jr. (Wallace, Barwick, Landis, Rodgman & Bower, P.A., Kinston, N.C.), F. Blackwell Stith, Stith & Stith, New Bern, N.C., on brief), for appellees.

Before ERVIN and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

CHAPMAN, Circuit Judge:

The plaintiff in this diversity action appeals the order of the district court granting summary judgment to the defendants in this action alleging personal injuries due to exposure to asbestos-containing products mined, manufactured and/or sold by defendants. Plaintiff contends that there are genuine issues of material fact as to plaintiff's exposure to defendant's products during the ten year period provided under North Carolina General Statute 1-15(b). ¹

Appellant also claims that this North Carolina statute is unconstitutional because it violates the equal protection clause of the fourteenth amendment to the United States Constitution and Article I, Secs. 18 and 32 of the North Carolina Constitution. Finding no merit in appellant's exceptions, we affirm.

I

Arnold Barwick worked as a plumber and steam fitter at Seymour Johnson Air Force Base in Goldsboro, North Carolina from 1961 to 1980. His first suit was filed in the United States District Court for the Southern District of Georgia on November 9, 1979 claiming injury from exposure to products containing asbestos which were mined, manufactured and/or sold by The Celotex Corporation, Fibreboard Corporation, Keene Corporation, Carey Canada (formerly Carey Canadian Mines, Ltd.), H.K. Porter, and Forty-Eight Insulations, Inc. ² Approximately eighteen months later, plaintiff filed the present action in the United States District Court for the Eastern District of North Carolina against the same defendants and against Pittsburgh Corning Corporation, alleging negligence, fraudulent concealment and strict liability in tort. In December 1981 the Georgia action was transferred to the Eastern District of North Carolina and consolidated with the action pending there. This transfer was with the consent of the parties.

Extensive discovery was conducted by the parties. Plaintiff was deposed in both the Georgia case and the North Carolina case as to his work record, exposure to the various products of the defendants during his twenty years of employment at Seymour Johnson Air Force Base and also as to his physical condition and medical history.

This case proceeded through the discovery period in a sequence that has been developed for handling asbestosis litigation. Both sides submitted fairly uniform sets of interrogatories, notices to produce and requests for admissions in an effort to establish the products to which the plaintiff had been exposed, his familiarity with asbestos products and dates of exposure to the products. Also developed was the list of asbestos-containing products mined, manufactured and/or sold by the various defendants, the asbestos content of the various products and the date or dates when asbestos may have been removed from various products.

As discovery progressed the district court began the process of narrowing the issues and culling the defendants so as to dismiss those defendants whose products had not been used by the plaintiff and preparing a very complex case for trial. In January 1983 following an extensive hearing the district court entered its first pretrial order which provided:

a. By January 26, 1983 the plaintiff must designate the state-of-the-art witnesses who plaintiff reasonably anticipates will actually testify at trial.

b. By the same date the plaintiff shall designate those diagnostic witnesses who plaintiff reasonably anticipates will testify at trial.

c. By the same date the plaintiff shall designate those treating physicians who plaintiff reasonably anticipates will actually testify at trial.

d. By the same date plaintiff shall designate all other witnesses who plaintiff reasonably e. That by the same date to designate those witnesses who will testify in person and who will testify by deposition.

anticipates will actually testify at trial; and with regard to each such witness the subject of his or her testimony; if he or she will be offered as an expert, and if so, a statement of the witness's opinions and a summary of the facts and grounds for each such opinion.

f. That each party shall require the party's diagnostic witnesses to have examined all x-rays, medical records, tissue slides, and other materials which serve as a basis for the witnesses' testimony and which are known to the party or the party's attorney at the time of the witness's discovery deposition; and that each such witness be prepared to give his final trial opinion as of the date of the taking of his discovery deposition by an opposing party to the extent that he can do so on such information and materials available.

g. That by January 31, 1983 the plaintiff shall designate his master trial exhibit list.

h. That by January 31, 1983 the defendant shall designate the names, addresses and telephone numbers of the witnesses, other than diagnostic witnesses, state-of-the-art witnesses or treating physicians who defendants reasonably anticipate will testify at trial; and with regard to each such witness, the subject of his or her testimony; if he or she will be offered as an expert, and if so, a statement of the witness's opinions and a summary of the facts and grounds for each such opinion. Ten days after the defendants have been served with the plaintiff's designations in paragraphs a through g, the defendant shall designate their state-of-the-art witnesses, diagnostic witnesses and any treating physicians who defendants reasonably anticipate will actually testify at trial, and defendants must state which witnesses will testify in person and which will testify by deposition. Within ten days after the service of the plaintiff's designation of his master trial exhibit list the defendants shall designate those exhibits which apply to asbestos litigation generally that they reasonably anticipate will actually be offered into evidence at trial.

i. The plaintiffs and defendants shall be precluded from listing or calling at trial any witnesses, or offering into evidence at trial any exhibits, not designated in accordance with the requirements of paragraphs a through h above. Upon a showing of extraordinary circumstances and good cause, a party may request the court in the interest of justice to be allowed to list and call a witness, or offer an exhibit, not designated as required herein above.

j. That plaintiff be required by February 4, 1983 to file with the court and serve on defendants a statement designating his co-worker, exposure and product identification witnesses (including the plaintiff) who will actually testify at trial along with the identification of all other evidence upon which the plaintiff intends to rely to establish the identification of each particular individual defendant as being a defendant whose product or products to which the plaintiff was exposed (designating separately as to each defendant the specific portions of such other evidence allegedly applicable to that defendant); and with regard to the witnesses (including the plaintiff) so designated providing the following information about each:

(1) Name, address and telephone number.

(2) The asbestos-containing products which each witness can identify by brand name, if known, and if not known, by generic name, and if he knows, specific application.

(3) For each such asbestos-containing product in (2) above, the defendant to which the witness attributes said product, if the witness thinks he knows the product's seller or manufacturer (and if not, to whom the plaintiff or plaintiff's attorneys contend such product is attributed).

(4) For each such asbestos-containing product and defendant to which it is attributed pursuant to (2) and (3) above, to the best of witness' knowledge, the dates, specific (5) As to each such witness, whether or not the witness has been deposed in any asbestos-related action; and if so, the title of the case (or cases) in which the deposition was taken, the jurisdiction involved and the approximate date of the deposition or depositions.

jobs, job sites and specific locations within each job site where the witness contends said product was seen or used.

k. Any defendant to which no product is attributed by timely compliance with subparagraphs j(1), (2) and (3) as to testimonial evidence to be presented by witnesses or by timely compliance with paragraph j with respect to the identification of other evidence, shall, upon written application to the court served upon the plaintiff, be entitled to the entry of an order dismissing plaintiff's action with prejudice, unless the plaintiff shall thereafter file with the court and serve on defendants, within five days of the service of defendant's application, a supplementary statement as to that defendant which fully complies with the above required identification of evidence.

Any defendant which has not responded to interrogatory No. 8 of the plaintiff's second interrogatories and request ...