994 F.2d 1295 (8th Cir. 1993), 92-1828, Jackson v. Anchor Packing Co.

Docket Nº:92-1828.
Citation:994 F.2d 1295
Party Name:Claudy JACKSON; Katherine Eardey Jackson; Horace H. Griffin; Sylvia Janette Hardy Griffin; John Burrell Thrower, Jr., Plaintiffs-Appellants, Mary Edwards Thrower, Plaintiff, Ruth Janie Marie Isabel Bokker, Individually and for the use and benefit of the next of kin of George Frantz Bokker; Billy Doyle Carr; Opal Jean Whatley Carr; Lavaughen Freeman
Case Date:June 02, 1993
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1295

994 F.2d 1295 (8th Cir. 1993)

Claudy JACKSON; Katherine Eardey Jackson; Horace H.

Griffin; Sylvia Janette Hardy Griffin; John

Burrell Thrower, Jr., Plaintiffs-Appellants,

Mary Edwards Thrower, Plaintiff,

Ruth Janie Marie Isabel Bokker, Individually and for the use

and benefit of the next of kin of George Frantz Bokker;

Billy Doyle Carr; Opal Jean Whatley Carr; Lavaughen

Freeman; Ola Mae Davis Freeman; Johnny Ray Griffin;

Janette Roberts Griffin; John Calvin Holloway; Phillis

Veneal Wallace Holloway; David Lee Treadaway; Gloria Ann

Prichard Treadaway; David Paul White; Sallie Aline Allen

White, Plaintiffs-Appellants,

v.

ANCHOR PACKING CO., a New Jersey Corporation; Garlock,

Inc., an Ohio Corporation; Owens Corning Fiberglas

Corporation, a Delaware Corporation; John Crane, Inc., also

known as Crane Packing Company; A. W. Chesterton Company, a

Massachusetts Corporation; Rexnord Corporation,

Individually and as successor in interest to P. T.

Components, Inc. Stearns Division, A Delaware Corporation;

Fibreboard Corporation, A Delaware Corporation; Keene

Corporation, Individually and as Successor to Baldwin, Ehret

& Hill and Owner of or Successor to Keene Building Products

Corporation; Defendants-Appellees,

John Does, 1-5, a provider of Talc; John Does, 6-10, a

provider of Soapstone; Defendants,

Owens-Illinois, Inc., formerly doing business as

Owens-Illinois Glass Co.; Defendant-Appellee,

John Does, 12-15, a provider of Asbestos Products; Defendant,

Georgia Talc Company, Defendant-Appellee.

No. 92-1828.

United States Court of Appeals, Eighth Circuit

June 2, 1993

Submitted Dec. 14, 1992.

Rehearing and Suggestion for Rehearing En Banc Denied July 19, 1993.

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Michael Rowland, Knoxville, TN, argued for appellants.

Michael D. Carter, Oklahoma City, OK, argued for Georgia Talc Co.; Mark Spitalnik of Denver, CO, argued for Owens-Illinois Inc.; George F. Fitzpatrick, Jr., Chicago, IL, argued for Rexnord Corp.; and Ronald D. Harrison, Ft. Smith, AR, argued for Anchor Packing.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BATTEY, [*] District Judge.

WOLLMAN, Circuit Judge.

This is a "tireworker" asbestos case arising under the district court's diversity jurisdiction. Ten former employees of the Mohawk Tire and Rubber Company plant in West Helena, Arkansas, ("Mohawk") filed suit against numerous manufacturers of asbestos-containing products. 1 After considerable discovery, the district court 2 granted the defendants'

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motions for summary judgment on the ground that the plaintiffs had failed to produce sufficient evidence that exposure to the defendants' products had proximately caused the plaintiffs' injuries, an essential element of their claims under Arkansas law. On appeal, the plaintiffs contend that the district court erred in adopting a proximate causation standard that is more stringent than Arkansas law requires. Alternatively, the plaintiffs contend that their evidence in fact met the causation standard that the district court employed. We affirm.

I.

Plaintiffs worked in the Mohawk tire plant for terms ranging from sixteen to twenty-three years during the plant's operation from 1956 to 1979. They performed various jobs at the plant and will be divided into three categories for purposes of this opinion. The first group of plaintiffs performed general "tireworker" duties and did not directly handle any of the defendants' asbestos products (the "bystander plaintiffs"). This group includes the following plaintiffs: Claudy Jackson (1963-79), Horace Griffin (1957-79), John Thrower (1957-79), LaVaughen Freeman (1959-79), Johnny Griffin (1958-79), John Holloway (1960-79), David Treadaway (1960-79), and David White (1960-79). The second category consists solely of plaintiff George Bokker, who worked as a boiler operator at the plant from 1958-74 and occasionally replaced gaskets and packing materials that allegedly contained asbestos. 3 The third category consists only of plaintiff Billy Carr, who worked as a maintenance mechanic from 1956-62 and as a machinist from 1962-79. As part of his duties as a maintenance mechanic, Carr directly handled pipe insulation, gaskets, and packing material that allegedly contained asbestos.

Likewise, the defendants fit into categories according to the type of products they manufactured. The first category consists of those defendants that manufactured pipe-covering insulation and block insulation products: Owens-Corning Fiberglas Corp. ("Owens-Corning"), which produced asbestos-containing "Kaylo" pipe and block insulation from 1956 until 1972; Owens-Illinois, Inc. ("Owens-Illinois"), which produced "Kaylo" pipe and block insulation from 1948 until 1958; Fibreboard Corp. ("Fibreboard"), which produced PABCO pipe insulation; and Keene Corp. ("Keene"), which is involved only in the suit brought by plaintiff David Treadaway as the alleged successor to Ehret & Hill Manufacturing Co., which manufactured Ehret pipe insulation. The second category consists of the manufacturers of gaskets and packing material: Anchor Packing Co. ("Anchor"); A.W. Chesterton Co. ("Chesterton"); John Crane, Inc. ("Crane"); and Garlock, Inc. ("Garlock"). The third category consists solely of Rexnord Corporation, which the plaintiffs are suing as the successor to Stearns Division, which manufactured asbestos-containing brake linings. (For simplicity, we will refer to the alleged predecessor and successor as "Rexnord.") The fourth category consists solely of Georgia Talc Co. ("Georgia Talc"), which the plaintiffs allege produced asbestos-containing talc or soapstone that was used to keep the rubber at the plant from sticking to itself and the machinery. 4

The plaintiffs filed their initial complaint on January 5, 1990. The complaint alleges that the plaintiffs were exposed to the products of all the defendants during their work careers at the Mohawk plant. Additionally, plaintiff David Treadaway alleges that he was exposed to insulation manufactured by Owens-Corning, Owens-Illinois, and Keene while he was stationed aboard the U.S.S. Boston from 1957 to 1960. The plaintiffs' complaint and the deposition testimony of their doctors state that all of the plaintiffs have developed asbestos-related medical conditions, including asbestosis, lung cancer, and thickening of the lungs' outer membrane (the

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pleura). 5 The plaintiffs allege that the defendants are liable for their injuries on the theories of negligence, strict products liability, and market share or alternative liability.

After both sides had conducted exhaustive discovery, all of the defendants moved individually for summary judgment on the ground that the plaintiffs had failed to discover sufficient evidence to support a finding that they had been exposed to a particular defendant's products and that such exposure was the proximate cause of their conditions. The defendants argued that Arkansas negligence and strict liability law require a prima facie showing by a plaintiff that a specific defendant's products constituted a substantial factor in producing the plaintiff's injuries.

In response, the plaintiffs contended that Arkansas law requires them to show only that they have contracted diseases caused by exposure to asbestos and that the defendants supplied asbestos-containing products to the Mohawk plant. The plaintiffs based their contention on the Arkansas Supreme Court's discussion of alternative liability theories in Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205, 209-10 (1971) ("Woodward II"), and on the "fiber drift" theory of causation. 6 They argued that their product identification deposition testimony had placed all of the defendants' products in the Mohawk plant during the plaintiffs' work careers and that their expert witness, John M. Dement, PhD., had supplied sufficient evidence of the ability of asbestos fibers to travel on air currents throughout the large, open Mohawk plant.

In three separate orders, the district court considered the defendants' motions for summary judgment. The court first addressed the proper standard of causation under Arkansas substantive law and the impact of the plaintiffs' evidence supporting the "fiber drift" theory. Relying heavily on its own opinion in Rogers v. Armstrong World Indus., 744 F.Supp. 901 (E.D.Ark.1990), the district court concluded that Arkansas courts have not embraced the concepts of alternative or market share liability, but require in all cases a showing that the defendant's conduct constituted a substantial contributing factor in causing the plaintiff's injuries. The court held that what has become known as the "frequency, regularity, and proximity" test of causation provides the correct measure of the substantial factor causation requirement in asbestos-exposure cases.

The district court, however, did not discard entirely the plaintiffs' evidence of fiber drift. Following the Third Circuit's lead in Robertson v. Allied Signal, Inc., 914 F.2d 360 (3d Cir.1990), the district court held that the plaintiffs' "fiber drift" evidence could be used to expand the area of possible exposure under the proximity prong of the causation test, but could not by itself satisfy the full proximate cause requirement.

After thoroughly reviewing the plaintiffs' proffered evidence under this standard, the court granted summary judgment in favor of all defendants. The district court found that, as to some defendants, the plaintiffs had failed to show that they had been exposed to products of the defendant that had contained asbestos. With respect to the remainder of the defendants, the court found that the plaintiffs had failed to introduce sufficient evidence that the defendant's products had been regularly and frequently...

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