Roehling v. National Gypsum Co. Gold Bond Bldg. Products, 85-1571

Citation786 F.2d 1225
Decision Date28 March 1986
Docket NumberNo. 85-1571,85-1571
Parties, Prod.Liab.Rep.(CCH)P 10,946 Grace A. ROEHLING, as Executrix of the Estate of Arthur J. Roehling, Appellant, v. NATIONAL GYPSUM COMPANY GOLD BOND BUILDING PRODUCTS; Owens-Illinois, Inc. and The Celotex Company, Successor-In-Interest to Philip Carey Corporation, Appellees, and Owens-Corning Fiberglas Corp., Successor by Purchase of Kaylo Division of Owens-Illinois Glass Co.; Pittsburgh Corning Corp.; H.K. Porter Co., Inc.; Southern Textile Co.; Eagle-Picher Industries, Inc.; Raymark Industries, Inc.; Porter-Hayden Co.; Philip Carey Corp.; Armstrong Cork Co.; Fibreboard Paper Products Corp.; Combustion Engineering, Inc.; Keene Insulation Co.; Nicolet, Inc. and Garlock, Inc., Defendants.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Thomas J. Pearson (Harold L. Sosebee, Jr., Thomas J. Pearson & Associates and Gerald F. Ragland, Jr., Houston, Tex., on brief), for appellant.

Robert L. O'Donnell (Vandeventer, Black, Meredith & Martin, Becky A. Powhatan, Bruce T. Bishop, Willcox & Savage, P.C., Jerrold G. Weinberg, Weinberg, Stein & Crenshaw, and R. Barrow Blackwell, Kaufman & Canoles, Norfolk, Va., on brief), for appellees.

Before ERVIN and SNEEDEN, * Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

ERVIN, Circuit Judge:

Arthur J. Roehling sued eighteen defendants, alleging personal injuries due to exposure to their asbestos products. Shortly after the filing suit, Roehling died and his wife, Grace A. Roehling, was substituted as plaintiff. The district court granted summary judgment in favor of four defendants; National Gypsum Company; Owens-Illinois, Inc.; GAF Corporation; and The Celotex Corporation. The other fourteen defendants had been previously dismissed from the suit.

On appeal, plaintiff contends that the court erred in granting summary judgment, as there are genuine issues of material fact as to Roehling's exposure to the remaining defendants' asbestos products. 1 Because we find some merit in plaintiff's assertion, we reverse in part and affirm in part.

I.

Arthur J. Roehling worked as a pipefitter in the Buffalo, New York area at three separate job sites from July, 1948 through March, 1951, as follows: (1) Huntley Power Station--July 1948 to December 1948; (2) DuPont Cellophane Plant--December 1948 to April 1949; and (3) Ford Stamping Plant--July 1950 through March 1951. Plaintiff claims that Roehling was exposed to defendants' asbestos products during this employment, and therefrom developed mesothelioma. 2

The evidence in the record upon which the district court relied in its order consists of Roehling's deposition, taken prior to his death, and the depositions of three witnesses who had worked during the period in question at one or more of the three job sites. The court held that this evidence was insufficient to raise any genuine issues of material fact because: (1) Roehling could not identify the asbestos products to which he was exposed at the three job sites; and (2) the three witnesses' testimony could not cure this deficiency since none of the three ever knew Roehling, or remembered having contact with Roehling, or could identify Roehling as being present on any of the jobs, or knew when, where or what product Roehling had been exposed to, if any. In other words, the court found that, based upon the evidence, there was no more than mere speculation that Roehling was exposed to defendants' products.

We agree with the district court that as to the DuPont Cellophane Plant and Ford Stamping Plant job sites, the evidence fails to establish issues of material fact. 3 We do not agree, however, that no genuine questions of fact exist regarding the Huntley Power Station.

II.

The testimony of Roehling and the three witnesses regarding the Huntley Power Station present the following evidence. Roehling worked on the construction of two new boilers as a pipefitter for the M.W. Kellog Company at the Huntley Power Station. His duties involved pipe installation and subsequent testing of the boiler piping system. At the same time as pipe installation and testing were taking place, asbestos insulators would follow behind the pipefitters installing asbestos pipe covering. Simultaneously, asbestos insulation was being applied to the boiler walls. Roehling stated that asbestos material was "all over the place." (Appendix I, pp. 7-8).

At the time Roehling was employed at the Huntley Power Station, only two companies were doing the asbestos insulation work: Taylor Insulation and Niagara Asbestos. Joseph Walters, an employee of Taylor Insulation, worked at the Huntley Power Station job site on one of the two new boilers during the same time period as Roehling. (Appendix II, pp. 27, 29, 31). He testified that pipefitters and insulators worked in the same areas at the same time, adjacent to one another. (Appendix II, pp. 64-66).

While employed there, Walters, an insulator, insulated boiler walls with asbestos block and then covered the block with asbestos cement. (Appendix II, p. 30). Therefore, Walters had direct contact with asbestos-containing products. He identified his employer as a distributor for National Gypsum products. (Appendix II, p. 35). He testified that ninety percent (90%) of the products he used at Huntley Power Station were from National Gypsum (Appendix II, p. 59), consisting of Gold Bond cement, blankets and block asbestos. Walters stated that Kaylo block (an Owens-Illinois, Inc. product) also was used. (Appendix II, p. 36).

John W. Kelleher also worked at the Huntley Power Station on one of the two new boilers during the same time period as Roehling. (Appendix II, pp. 70, 72). He was employed by Taylor Insulation as an insulator-helper. Although Kelleher's job classification was that of helper, he was involved in product application on the boiler walls and thus had personal knowledge of the product type being applied. (Appendix II, p. 71). He testified that "tons of" Gold Bond cement and Gold Bond asbestos blanket, provided by National Gypsum, were used at the job site. (Appendix II, pp. 74, 84-85).

Harry J. Hassey also worked at Huntley Power Station during the same time period as Roehling. (Appendix II, p. 91). He stated that two new boilers were being constructed. (Appendix II, p. 94). He was employed by the second insulation company on the Huntley Power Station job site, Niagara Asbestos, (Appendix II, p. 95), as an insulation helper on one of the new boilers. (Appendix II, p. 116). Hassey's duties involved preparing asbestos block and pipe covering insulation; removing it from containers, sawing it and delivering it to the insulators. (Appendix II, pp. 93, 96-97). He also mixed asbestos cement and delivered it to the insulators. (Appendix II, 93, 96-97). Additionally, Hassey was involved in application of asbestos products about ten percent (10%) of the time. (Appendix II, p. 107). Hassey, due to his broad range of duties on the new boiler, was able to testify that Kaylo block by Owens-Illinois, Inc. and Gold Bond cement by National Gypsum were used. (Appendix II, pp. 97-98).

Defendants have not presented any evidence disputing the above testimony of the witnesses and Roehling. Defendants merely assert, and the district court held, that the evidence is not enough to place Roehling in close proximity to identifiable asbestos products.

III.

Viewing the evidence in the light most favorable to plaintiff, 4 we must conclude that defendants and the district court are wrong. The facts and underlying inferences establish that Roehling worked in the same limited area of the plant, at the same time, as the witnesses, on the construction of the new boiler(s) as pipefitter and insulators/helpers working side by side. Although Roehling could not himself remember what asbestos products were used in this work area, the witnesses, who handled the materials, have distinct memories: Owens-Illinois and National Gypsum. 5 Such evidence clearly raises a question of fact as to whether Roehling was exposed to defendants' products.

We disagree with the district court that direct evidence is needed showing that Roehling identified the asbestos products or that the witnesses knew, had contact with, or recognized Roehling as being on the job site. Such...

To continue reading

Request your trial
85 cases
  • Armstrong World Industries, Inc. v. Aetna Casualty & Surety Co.
    • United States
    • California Court of Appeals Court of Appeals
    • 30 Abril 1996
    ...960 F.2d 806, 816-818; Bauer v. Raymark Industries, Inc. (2d Cir.1988) 849 F.2d 790, 792-793; Roehling v. Nat. Gypsum Co. Gold Bond Bldg. (4th Cir.1986) 786 F.2d 1225, 1228, fn. 5; Blackston v. Shook & Fletcher Insulation Co. (11th Cir.1985) 764 F.2d 1480, 1482, 1485; Gideon v. Johns-Manvil......
  • Lockwood v. AC & S, Inc.
    • United States
    • Washington Court of Appeals
    • 14 Julio 1986
    ...label defective insecticide); Hernandez v. Western Farmers Ass'n, 76 Wash.2d 422, 425-26, 456 P.2d 1020 (1969). See also Roehling v. Nat'l Gypsum Co., 786 F.2d 1225 (4th Cir. "[T]he evidence must present something more than a mere possibility or conjecture, [and] it is equally sound that th......
  • Sheffield v. Owens-Corning Fiberglass Corp.
    • United States
    • Alabama Supreme Court
    • 28 Febrero 1992
    ...Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir.1990) (use of defendant's products was undisputed); Roehling v. National Gypsum Co. Gold Bond Bldg. Products, 786 F.2d 1225 (4th Cir.1986) (plaintiff's coworkers had "distinct memories" of specific manufacturers); Martin v. American Petrofina......
  • Sholtis v. American Cyanamid Co.
    • United States
    • New Jersey Superior Court — Appellate Division
    • 22 Diciembre 1989
    ...in joint and several liability, unless the defendants could better apportion their responsibility. See Roehling v. National Gypsum Co., 786 F.2d 1225, 1228 (4th Cir.1986). 14 This principle is not unknown to New Jersey. See Fosgate v. Corona, 66 N.J. 268, 272-273, 330 A.2d 355 (1974). Anoth......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT