Black v. Abex Corp.

• Decision Date: 22 December 1999
• Docket Number: No. 990148.,990148.
• Citation: 603 N.W.2d 182,1999 ND 236
• Parties: Rochelle M. BLACK, individually, as surviving spouse, and on behalf of the Estate of Markus Hugh Black, deceased, Plaintiff and Appellant, v. ABEX CORPORATION, a Delaware Corporation (formerly known as American Brake Shoe & Foundry Co. and American Brake Shoe Co.), et al., Defendants, Allied-Signal, Inc., a Delaware corporation, (individually and as successor-in-interest to Bendix Corp.); Borg-Warner Corporation, a Delaware corporation; The Chrysler Corporation, a Delaware corporation, (individually and as successor-in-interest to American Motors Corp.); and General Motors Corporation, a Delaware corporation, Defendants and Appellees.
• Court: North Dakota Supreme Court

603 N.W.2d 182

1999 ND 236

Rochelle M. BLACK, individually, as surviving spouse, and on behalf of the Estate of Markus Hugh Black, deceased, Plaintiff and Appellant, v. ABEX CORPORATION, a Delaware Corporation (formerly known as American Brake Shoe & Foundry Co. and American Brake Shoe Co.), et al., Defendants, Allied-Signal, Inc., a Delaware corporation, (individually and as successor-in-interest to Bendix Corp.); Borg-Warner Corporation, a Delaware corporation; The Chrysler Corporation, a Delaware corporation, (individually and as successor-in-interest to American Motors Corp.); and General Motors Corporation, a Delaware corporation, Defendants and Appellees.

No. 990148.

Supreme Court of North Dakota.

December 22, 1999.

David C. Thompson (argued), Rebecca Heigaard McGurran (appearance), and Brad Kolling (appearance, third year law student), David C. Thompson, P.C., Grand Forks, N.D., for plaintiff and appellant.

David E. Reich (argued), Pearce & Durick, Bismarck, N.D.; Steven L. Latham (appearance), Wheeler Wolf, Bismarck, N.D.; and Joel A. Flom (appearance), Jeffries, Olson, Flom & Bullis, P.A., Moorhead, MN, for defendants and appellees.

Ronald H. McLean and Jane L. Dynes, Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, N.D., for amicus curiae. Submitted on brief.

KAPSNER, Justice.

[¶ 1] Rochelle Black appeals from a summary judgment dismissing her wrongful death and survival claims premised upon market share or alternative liability against numerous asbestos manufacturers. Concluding Black has failed to raise a genuine issue of material fact which would preclude summary judgment, we affirm.

I

[¶ 2] Rochelle Black's husband, Markus, served in the Air Force as an auto mechanic from 1971 to 1986. He died of lung cancer in 1991. Black sued forty-eight asbestos manufacturers, alleging her husband's death had been caused by his occupational exposure to asbestos-containing products. Included in her complaint were claims based upon market share and alternative liability.

[¶ 3] The defendants moved for partial summary judgment requesting dismissal of the market share and alternative liability claims. The court granted the motion for partial summary judgment and dismissed those claims in its Pretrial Order dated August 29, 1995.

[¶ 4] Subsequently, all remaining claims against the defendants were either settled or voluntarily dismissed prior to the scheduled trial. On February 25, 1999, the court entered a "Concluding Order" covering this and several other consolidated asbestos cases, indicating all of the cases had been "fully and finally disposed of and the time for all appeals of this Court's orders and judgments in those cases has run." Black filed a notice of appeal from the Concluding Order and from the 1995 Pretrial Order granting the motion for summary judgment.¹

II

[¶ 5] The defendants assert the appeal should be dismissed because Black waived her right to appeal. They assert Black, through counsel, agreed to the terms of the Concluding Order, which provided that the time for all appeals had run.

[¶ 6] There is no evidence in this record demonstrating Black or her counsel specifically agreed to the terms of the Concluding Order, including the erroneous pronouncement that the time for all appeals had run. Nor do the defendants cite any authority suggesting a trial court can preclude an appeal merely by inserting such language in its final order or judgment.

[¶ 7] The court never certified its dismissal of the market share and alternative liability claims as final under N.D.R.Civ.P. 54(b). Accordingly, the dismissal remained subject to revision and was not final until all claims against all parties were finally resolved by the February 1999 Concluding Order. Hurt v. Freeland, 1997 ND 194, ¶ 5, 569 N.W.2d 266. Black could not appeal until all claims were resolved. Id. The defendants concede the February 1999 Concluding Order constituted the final judgment in the case.

[¶ 8] We conclude the defendants have failed to establish waiver and the appeal is properly before us.

III

[¶ 9] Black asserts the district court erred in dismissing her claims based upon market share liability. She argues market share liability is a viable tort theory under North Dakota law and its application is appropriate under the facts of this case.

A

[¶ 10] The genesis of market share liability lies in the California Supreme Court's decision in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980). In Sindell, the court held that women who suffered injuries resulting from their mothers' ingestion of the drug DES during pregnancy could sue DES manufacturers, even though the plaintiffs could not identify the specific manufacturer of the DES each of their respective mothers had taken. The court fashioned a new form of liability which relaxed traditional causation requirements, allowing a plaintiff to recover upon showing that she could not identify the specific manufacturer of the DES which caused her injury, that the defendants produced DES from an identical formula, and that the defendants manufactured a "substantial share" of the DES the plaintiff's mother might have taken. Id. at 936-37. The court held each defendant would be liable for a proportionate share of the judgment based upon its share of the relevant market, unless it demonstrated it could not have made the product which caused the plaintiff's injury. Id. at 937.

[¶ 11] The essential elements of market share liability are summarized in W. Page Keeton et al., Prosser and Keeton on the Law of Torts, § 103, at 714 (5th ed.1984):

The requirements for market-share liability seem to be: (1) injury or illness occasioned by a fungible product (identical-type product) made by all of the defendants joined in the lawsuit; (2) injury or illness due to a design hazard, with each having been found to have sold the same type product in a manner that made it unreasonably dangerous; (3) inability to identify the specific manufacturer of the product or products that brought about the plaintiff's injury or illness; and (4) joinder of enough of the manufacturers of the fungible or identical product to represent a substantial share of the market.

[¶ 12] The overwhelming majority of courts which have addressed the issue have held market share liability is inappropriate in cases alleging injury from exposure to asbestos. See, e.g., Robertson v. Allied Signal, Inc., 914 F.2d 360, 380 (3d Cir.1990)

; White v. Celotex Corp., 907 F.2d 104, 106 (9th Cir.1990); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir.1985); In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del.Super.Ct.1986); Celotex Corp. v. Copeland, 471 So.2d 533, 537-39 (Fla.1985); Leng v. Celotex Corp., 196 Ill.App.3d 647, 143 Ill. Dec. 533, 554 N.E.2d 468, 470-71 (1990); Sholtis v. American Cyanamid Co., 238 N.J.Super. 8, 568 A.2d 1196, 1203-05 (App. Div.1989); Goldman v. Johns-Manville Sales Corp., 33 Ohio St.3d 40, 514 N.E.2d 691, 700-01 (1987); Case v. Fibreboard Corp., 743 P.2d 1062, 1064-67 (Okla.1987); Gaulding v. Celotex Corp., 772 S.W.2d 66, 70-71 (Tex.1989); see also Prosser, supra, at § 103; 1 Louis R. Frumer & Melvin I. Friedman, Products Liability § 3.06[5][h][vii] (1999); L. Joel Chastain, Note, Market Share Liability and Asbestos Litigation: No Causation, No Cause, 37 Mercer L.Rev. 1115, 1116-17, 1134-36 (1986); Frank J. Giliberti, Emerging Trends for Products Liability: Market Share Liability, Its History and Future, 15 Touro L.Rev. 719, 726-27 (1999); Andrew B. Nace, Note, Market Share Liability: A Current Assessment of a Decade-Old Doctrine, 44 Vand. L.Rev. 395, 414-15 (1991). The most oft-cited rationale is that asbestos is not a fungible product, as evidenced by the wide variety of asbestos-containing products, the varying types and amounts of asbestos in those products, and the varying degrees of risk posed by those products. See White, 907 F.2d at 106; Blackston, 764 F.2d at 1483; Copeland, 471 So.2d at 537-38; Leng, 143 Ill.Dec. 533,

554 N.E.2d at 470-71; Goldman, 514 N.E.2d at 700-01; Case, 743 P.2d at 1065-66; Sholtis, 568 A.2d at 1204 n. 10; Chastain, supra, 37 Mercer L.Rev. at 1138; Nace, supra, 44 Vand. L.Rev. at 415. The leading treatise recognizes:

[I]t can reasonably be argued that it would not be appropriate to apply this fungible product concept to asbestos-containing products because they are by no means identical since they contain widely varying amounts of asbestos.

Prosser, supra, § 103, at 714.

[¶ 13] Black essentially concedes market share liability is inappropriate in a "shotgun" asbestos case, where the plaintiff is alleging injury from exposure to many different types of asbestos products. Black asserts, however, market share liability may be appropriate when the plaintiff seeks to hold liable only manufacturers of one type of asbestos-containing product. Relying upon Wheeler v. Raybestos-Manhattan, 8 Cal.App.4th 1152, 11 Cal.Rptr.2d 109 (1992), Black asserts she should be allowed to proceed in her market share claims against the manufacturers of asbestos-containing "friction products," including brake and clutch products. In Wheeler, the California Court of Appeal held a plaintiff could proceed on a market share theory against manufacturers of asbestos-containing brake pads. The court overturned the trial court's order granting a nonsuit in favor of the manufacturers, concluding the plaintiff's offer of proof sufficiently alleged that the brake pads, although not identical, were "fungible" because they contained percentages of asbestos within a "restricted range" of between forty and sixty percent and posed nearly equivalent risks of harm. Id. at 111-12.

[¶ 14] Black requests that we recognize market share liability as a viable tort theory under North Dakota law. Black further requests that we follow Wheeler and hold that automotive "friction products," including asbestos-containing brake and clutch...