744 F.Supp. 901 (E.D.Ark. 1990), Civ. LR-C-89-352, Rogers v. Armstrong World Industries, Inc.

Docket Nº:Civ. LR-C-89-352
Citation:744 F.Supp. 901
Party Name:Rogers v. Armstrong World Industries, Inc.
Case Date:July 16, 1990
Court:United States District Courts, 8th Circuit, Eastern District of Arkansas

Page 901

744 F.Supp. 901 (E.D.Ark. 1990)

Pauline ROGERS, as Administratrix of the Estate of Orka Rogers, Deceased, Thomas R. LeCroy, as Administrator of the Estate of Thomas A. LeCroy, Deceased, Plaintiffs,

v.

ARMSTRONG WORLD INDUSTRIES, INC., et al., Defendants.

Civ. No. LR-C-89-352.

United States District Court, E.D. Arkansas, Western Division.

July 16, 1990

Page 902

Bobby Lee Odom, Odom & Elliott, Fayetteville, Ark., Ness Law Firm, Charleston, S.C., for plaintiffs.

Richard N. Watts, Laser Law Firm, Little Rock, Ark., Belinda Molander, Smith Law Firm, Dallas, Tex., Otis Turner, Arkadelphia, Ark., Tom F. Lovett, Lovett Law Firm, Stephen L. Curry, Ivester, Henry, Skinner & Camp, Little Rock, Ark., Floyd M. Thomas, Jr., Compton, Prewett, Thomas & Hickey, El Dorado, Ark., Thompson, Hine & Flory, Cleveland, Ohio, and Webster L. Hubbell, Little Rock, Ark., J. Dennis Chambers, Atchley Law Firm, Texarkana, Tex., Robert E. Kerrigan, Jr., A. Wendel Stout, III, Barbara L. Arras, Janet L. MacDonell, Jude D. Bourque, R.L. Courtade, Jr., Deutsch, Kerrigan & Stiles, New Orleans, La., Overton Anderson, Anderson & Kilpatrick, Little Rock, Ark., for defendants.

MEMORANDUM AND ORDER

EISELE, Chief Judge.

Pending before the Court is the motion for summary judgment filed by separate defendant W.R. Grace & Co.--Conn seeking dismissal of the claims against this defendant filed by the administratrix of the estate of Orka Rogers. For the reasons set forth below, the motion will be granted in part and denied in part.

Between 1948 and 1973, Orka Rogers worked as a plumber and pipe-fitter at various locations throughout Arkansas, Texas, South Carolina and Illinois. During this time, he was allegedly exposed to asbestos-containing products manufactured or distributed by the sixteen defendants named in this lawsuit. It is also alleged that the decedent developed pulmonary injuries and ultimately died as a result of this exposure. The estate of Mr. Rogers seeks damages from the defendants on various theories of liability including negligence, strict products liability, breach of warranties and civil conspiracy.

W.R. Grace now moves for summary judgment contending that the Rogers estate lacks sufficient evidence that would enable a jury to conclude that exposure to W.R. Grace's product proximately caused the decedent's injuries. The defendant submitted to the plaintiff interrogatories that seek, inter alia, identification of all asbestos-containing products that the plaintiff claims the decedent was exposed to, as well as the approximate dates of and places of such exposure. In response, the plaintiff merely listed his employers and dates of employment. He did not identify any of W.R. Grace's products (or any other products for that matter) as being used at those job-sites. Nor did the decedent establish exposure to any product manufactured by this defendant when his deposition was taken on October 30, 1989.

W.R. Grace argues that it is entitled to judgment as a matter of law since Rule 56(c) of the Federal Rules of Civil Procedure mandates entry of summary judgment "against a party who fails to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

In response, the plaintiff states that she will offer circumstantial evidence of the decedent's exposure to a W.R. Grace asbestos product through the testimony of Mr. Irving Ward. Mr. Ward worked as an insulator

Page 903

and pipe-fitter at the Reynolds Aluminum Plant in Bauxite, Arkansas between 1956 and 1982. In his deposition, he stated that he worked in various buildings at the plant repairing large steel vats, referred to as vessels, and used a variety of asbestos-containing products including small amounts of an insulating cement called Zonolite, which is now owned by W.R. Grace.

In 1967, the decedent was employed by the Stewart Plumbing Company and worked at the Reynolds plant in Bauxite. However, the decedent also listed one other employer for 1967 and a second job-site, and it is unknown how long the plaintiff worked at the Reynolds plant. It is also unknown whether Zonolite was ever used by Mr. Ward, or any other worker in 1967, or if so whether this material was used in the areas where the decedent worked. Nonetheless, the plaintiff argues that this evidence creates a triable issue of fact in that it circumstantially establishes the decedent's exposure to W.R. Grace's Zonolite cement.

Relying on Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985), the defendant contends that the evidence is insufficient to defeat the present motion for summary judgment because it does not establish that Zonolite was ever used during the time the plaintiff worked at the Reynolds plant or that he worked in proximity to this product when it was being applied. In Blackston, as in the present case, the plaintiff lacked any direct evidence of exposure to the defendant's asbestos-containing product. However, the plaintiff sought to establish exposure by showing that the product was used by other workers during the construction of a paper mill at roughly the same time that the plaintiff worked there. Id., at 1481. The district court granted summary judgment holding that while the plaintiff could establish that he worked at the paper mill when the defendant's product was being used, he failed to establish that he worked in the vicinity where the asbestos was being applied and therefore could not establish that he had been exposed to the defendant's product. Id.

In affirming the district court, the court of appeals held that under Georgia law the plaintiff's burden of establishing that exposure proximately caused his injuries required evidence that a particular defendant's asbestos product was used at the jobsite and that the plaintiff was in proximity to that product at the time it was used. Id., at 1486. In so holding, the court refused to adopt a market-share basis for liability, and similarly rejected the plaintiff's argument that the mere presence of asbestos on the job-site created a rebuttable presumption of exposure to the defendant's products finding both would conflict with Georgia's causation requirements. Blackston at 1483.

The plaintiff in the present case argues that the standard of proof set forth in Blackston is not the law in...

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