Blackston v. Shook and Fletcher Insulation Co.

• Decision Date: 12 July 1985
• Docket Number: No. 83-8553,83-8553
• Parties: , Prod.Liab.Rep.(CCH)P 10,590 Benjamin H. BLACKSTON, Wilmer L. Ring, John N. Turner, James N. Tanksley and Foster G. Hickox, Plaintiffs-Appellants, v. SHOOK AND FLETCHER INSULATION CO., et al., Defendants, AC & S, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1480

764 F.2d 1480

54 USLW 2090, Prod.Liab.Rep.(CCH)P 10,590

Benjamin H. BLACKSTON, Wilmer L. Ring, John N. Turner, James

N. Tanksley and Foster G. Hickox, Plaintiffs-Appellants, v. SHOOK AND FLETCHER INSULATION CO., et al., Defendants, AC & S, Inc., Defendant-Appellee.

No. 83-8553.

United States Court of Appeals, Eleventh Circuit.

July 12, 1985.

Richard H. Middleton, Jr., Ronald L. Motley, Eugene Clyde Brooks, IV, Savannah, Ga., Thomas Hart, III, Barnwell, S.C., for Blackston.

John T. Woodall, Savannah, Ga., for defendants.

Richard K. Hines V, and Richard P. Schultz, Atlanta, Ga., for Raymark Industries, et al.

Appeal from the United States District Court for the Southern District of Georgia.

Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

RONEY, Circuit Judge:

This is one of the first asbestos-related injury tort cases to come before this Court. Regardless of the theory of liability in such cases, the threshold for every theory is proof that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible. The key to the review of a summary judgment for a defendant in such case is whether the trial court imposed an improper burden on the plaintiff to establish an issue of fact that exposure occurred. In affirming the grant of summary judgment in this case we make two holdings: first, the district court correctly held that recovery will require the plaintiff to show that he was exposed to defendant's asbestos-containing product by working with or in close proximity to the product; second, we reject the argument that we should create a judicial presumption that a plaintiff was exposed to the asbestos in a defendant's products by simply showing that he worked at a job site at a time when the defendant's asbestos-containing products were used. Applying these principles to the evidence in this case, we affirm the district court on the ground that plaintiff's evidence cannot support a finding that he worked with or in close proximity to this defendant's products.

Because this is the beginning of what apparently will be a volume of litigation in this Court concerning asbestos-related injuries, it is appropriate to comment briefly on the litigation and the approach this Court should take in these cases. Prior cases have discussed the diseases associated with exposure to asbestos fibers, including mesothelioma, asbestosis, and lung cancer. See, e.g., Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1214 & n. 1, 1218-19 (6th Cir.1980), cert. denied, 454 U.S. 1109, 102 S.Ct. 686, 70 L.Ed.2d 650 (1981); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083-85 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974). The widespread use of asbestos products, the ambient nature of asbestos fibers, and the debilitating effects of asbestos-related diseases have resulted in a flood of litigation in courts throughout the nation. See, e.g., Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314, 1323 (5th Cir.1985) (en banc ) (noting that over 20,000 asbestos-related personal injury lawsuits have already been filed and citing studies that indicate over 21 million Americans have been significantly exposed to asbestos over the last forty years); see also id. at 1335-41 (Clark, C.J., dissenting) (appendix to dissent entitled "Dimensions of Asbestos Litigation"). Faced with such a burgeoning problem, the Court could take either of two approaches to deciding the asbestos cases before it: either to make broad pronouncements of law in an attempt to guide the district courts as they manage cases involving a variety of factual, legal, and socioeconomic issues, or merely to decide each case on the narrow ground that leads to a decision. The law will be better served for the Court to follow the latter course.

Benjamin Blackston, a 59-year-old pipefitter, filed claims against twenty-five defendants alleging injuries arising from exposure to asbestos-containing products between 1940 and 1975. During 1966 and 1967, Blackston was employed by Rust Engineering Company during the construction of the Riceboro Paper Mill in Riceboro, Georgia. A C and S, the only defendant involved in this appeal, is a contracting company engaged in the business of installing industrial and commercial insulation products. It appears that A C and S was a contractor at the Riceboro Paper Mill while Blackston was employed there and that A C and S used Armaspray, an asbestos-containing product of the Armstrong Cork Company, in the course of installing insulation.

The district court held that in order to establish exposure, the plaintiff would have to show that he worked in the vicinity where the defendant's insulators were using this product. Although the plaintiff could show that he worked at the Riceboro plant at the time the product was being used, his evidence did not show that he was working in the vicinity that it was being used. The district court noted that it had refused to grant summary judgment for defendants when presented with two types of evidence. Either "the plaintiff could identify by name those insulators around whom he worked," and the insulators provided affidavits that they used asbestos-containing products, or "the insulators identified the plaintiff by name as working in the same vicinity as they worked."

The district court had before it the pleadings, and a statement of facts; two depositions of Blackston in which he could not positively identify A C and S or the asbestos-containing products as having been used at Riceboro; an affidavit of counsel with an attached periodical article submitted as a learned treatise; two affidavits of Blackston; an affidavit of Willie O. Partain, an insulator employed at Riceboro from 1966 to 1968, stating that he used Armaspray at Riceboro while working in close proximity to other trades, including pipefitters; and a deposition excerpt of Wainwright Hendrix, who worked for A C and S at Riceboro from 1966 to 1968, stating that he used A C and S products on the job.

In considering a motion for summary judgment, this evidence must be viewed in the light most favorable to the party opposing the motion for summary judgment. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983); Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, 669 F.2d 1026, 1031 (5th Cir. Unit B 1982). All reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant, Impossible Electronics, 669 F.2d at 1031, but an inference based on speculation and conjecture is not reasonable. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982).

The affidavits and deposition excerpts contained in the record fail to provide evidence that A C and S insulators worked in proximity to plaintiff Blackston. Although Blackston in his affidavit indicated that he worked in proximity to insulators while working at the Riceboro Paper Mill, he has no idea whether those insulators were employed by A C and S or whether they were using asbestos. Although insulators employed by A C and S at Riceboro Paper Mill testified that they used asbestos-containing insulation products in close proximity to other trades at Riceboro Paper Mill, including pipefitters, they cannot specifically recall whether Blackston was one of those pipefitters. We therefore conclude that the district court determined correctly on the basis of the record before it that there was not a genuine issue of material fact as to whether Blackston was exposed to asbestos-containing products manufactured by A C and S.

Because proof of exposure to a particular defendant's asbestos-containing products is an essential element of plaintiff's cause of action under Georgia law, Blackston contends that the district court's requirement is too strict and that the evidence, though circumstantial, was sufficient to create a genuine issue of material fact on the exposure question. The line between circumstantial evidence sufficient to support a finding under a substantial evidence standard and evidence which merely permits conjecture or speculation is difficult to draw. But under existing Georgia and federal law, the district court appears to have done it correctly in this case.

Under Georgia law, "proximate cause" is an essential element of Blackston's case whether he proceeds under a strict liability or a negligence theory. Talley v. City Tank Corp., 158 Ga.App. 130, 279 S.E.2d 264, 269 (1981); see also Center Chemical Co. v. Parzini, 234 Ga. 868, 218 S.E.2d 580, 582 (1975); Union Carbide Corp. v. Holton, 136 Ga.App. 726, 222 S.E.2d 105, 108-09 (1975). Blackston must satisfy this proximate cause requirement by showing that his injuries were caused by exposure to products manufactured or used by A C and S. In affirming summary judgment for the defendant in a products liability action, the Court of Appeals of Georgia stressed that the plaintiff must link a particular defendant's product to his injury in order to prevail:

Strict liability is imposed for injuries which are the proximate result of product defects, not for the manufacture of defective products. Unless the manufacturer's defective product can be shown to be the proximate cause of the injuries, there can be no recovery. A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of his own marketed product and not that of someone else.

Talley, 279 S.E.2d at 269 (emphasis in original). The same causal connection between a defendant's dereliction and a plaintiff's injuries is required in negligence cases. Jones v. Adamson's, Inc., 147 Ga.App. 282, 248 S.E.2d 514, 515 (1978); see also Douglas v. Smith, 578 F.2d 1169, 1175-76 (5th Cir.1978) (applying Georgia law).

Reasons behind the requirement that plaintiffs prove exposure to a particular defendant's products in order to establish proximate...