Case v. Fibreboard Corp., 67749

• Decision Date: 22 September 1987
• Docket Number: No. 67749,67749
• Citation: 1987 OK 79,743 P.2d 1062
• Parties: , Prod.Liab.Rep. (CCH) P 11,567, 1987 OK 79 Bobbie Edwin CASE and Eva Case, Plaintiffs/Appellants, v. FIBREBOARD CORPORATION; Johns-Manville Sales Corporation; Owens-Corning Fiberglass Corp.; Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corporation; Celotex Corporation; GAF Corporation; Armstrong Cork Company; Standard Asbestos Manufacturing and Insulating Company; Nicolet Industries, Inc.; Keene Corporation; Combustion Engineering, Inc.; Forty-Eight Insulation, Inc.; Ryder Industries, Inc.; Owens-Illinois, Inc.; Raymark Industries, Inc.; Flintkote Company; Rock Wool Manufacturing Company; H.B. Fuller Company; Unarco Industries, Inc.; H.K. Porter Company; and National Gypsum Company, Defendants/Appellees.
• Court: Oklahoma Supreme Court

Page 1062

743 P.2d 1062

56 USLW 2252, Prod.Liab.Rep. (CCH) P 11,567,

1987 OK 79

Bobbie Edwin CASE and Eva Case, Plaintiffs/Appellants, v. FIBREBOARD CORPORATION; Johns-Manville Sales Corporation Owens-Corning Fiberglass Corp.; Eagle-Picher Industries Inc.; Pittsburgh-Corning Corporation; Celotex Corporation GAF Corporation; Armstrong Cork Company; Standard Asbestos Manufacturing and Insulating Company; Nicolet Industries, Inc.; Keene Corporation; Combustion Engineering, Inc.; Forty-Eight Insulation, Inc.; Ryder Industries, Inc.; Owens-Illinois, Inc.; Raymark Industries, Inc.; Flintkote Company; Rock Wool Manufacturing Company; H.B. Fuller Company; Unarco Industries, Inc.; H.K. Porter Company; and National Gypsum Company, Defendants/Appellees.

No. 67749.

Supreme Court of Oklahoma.

Sept. 22, 1987.

Ungerman, Conner & Little by Mark H. Iola, Tulsa, for plaintiffs/appellants.

Abowitz & Welch by Mort G. Welch and Murray E. Abowitz, Oklahoma City, for defendants/appellees Fibreboard Corp., Owens-Corning Fiberglass, Eagle-Picher Industries, Inc., Pittsburgh-Corning Corp., Celotex Corp., GAF Corp., Owens-Illinois, Inc., Flintkote Co., Rock Wool Manufacturing Co., H.K. Porter Co., and National Gypsum Co.

Sanders & Carpenter by Philip McGowan, Tulsa, for defendant/appellee Nicolet Industries, Inc.

Feldman, Hall, Franden, Woodward & Farris by William S. Hall, Tulsa, for defendant/appellee Combustion Engineering, Inc.

Jones, Givens, Gotcher, Bogan & Hilborne, P.C. by Alfred K. Morlan and Joan Godlove, Tulsa, for defendant/appellee Raymark Industries, Inc.

Barkley, Rodolf, White & Hartman by Mike Barkley and Andrew S. Hartman, Tulsa, for defendant/appellee H.B. Fuller Co.

LAVENDER, Justice:

The United States Court of Appeals for the Tenth Circuit has certified a question of law to this Court pursuant to the Uniform Certification of Questions of Law Act. ¹ The question asks:

"In an action brought under a theory of manufacturer's products liability in which precise identification of the tort-feasors cannot be verified, does Oklahoma recognize a form of collective liability as an alternative theory of relief when the plaintiff's alleged injury arises from the ingestion of asbestos fibers?"

The facts certified by the federal court in connection with the question posed are:

In a diversity action brought under Oklahoma's manufacturer's products liability law and filed in the United States District Court for the Northern District of Oklahoma, Bobbie and Eva Case alleged from the years 1949 through the present, Mr. Case was employed as a sheet metal worker in various locations in the State of Oklahoma. In that capacity, it is alleged Mr. Case was exposed to asbestos containing products manufactured, distributed, and sold by the defendants. Mr. Case claims that as a result of ingesting asbestos dust fibers and other elements of these products, he suffered severe, permanent, and disabling injuries. Mr. Case claimed that the defendants' products were unreasonably dangerous.

Discovery initiated by the defendants disclosed that Mr. Case was incapable of identifying either the precise products to which he had been exposed or the precise manufacturers of those products. It is contended that the inability to make the identifications is not due to any negligence on the part of Mr. Case, but rather to the fact that because of the nature of his employment, he had no knowledge of the asbestos containing products used at the jobsites at which he had worked. Thus, while the defendants have a connection to the production, distribution, and sale of products containing asbestos, Mr. Case cannot connect any of them specifically to the products to which he has been exposed.

The plaintiffs contended they could maintain the action because of the unique nature of the injury causing agent and the illness it produces. Plaintiffs argued that under the circumstances of this case, Oklahoma would recognize a theory of collective liability in which the defendants would share responsibility for plaintiffs' damages upon the basis of each defendant's share of the market for asbestos products manufactured, distributed, or sold in Oklahoma.

Because of the failure to tie any of the named defendants to any specific product containing asbestos to which plaintiff Case was exposed, the federal district court granted summary judgment to each of the defendants and plaintiffs appealed. The federal appellate court has in turn sought the guidance of this Court on the assertion by plaintiffs that Oklahoma law would grant relief even though plaintiffs could not identify the individual tort-feasors.

In the present action plaintiffs have named as defendants twenty-two out of more than three hundred companies that have manufactured and marketed asbestos and asbestos-containing products. ² Plaintiffs, in their briefs to this Court have suggested that their action is maintainable, though they have joined less than all possible tort-feasors and can identify none as a definite source of injury, on the basis that all manufacturers and marketers of asbestos should stand collectively liable for any injury occurring as a result of asbestos exposure. Plaintiffs further argue that any named defendant who cannot affirmatively prove that its products could not have been a possible source of their injury should stand jointly and severally liable for plaintiff's damages.

The genesis of plaintiffs' argument lies in the case of Sindell v. Abbott Laboratories. ³ In Sindell the California Supreme Court recognized a theory of liability based on the market share held by a manufacturer of a specific harmful substance. The court based its decision on the facts that DES, ⁴ although manufactured by some 200 companies, ⁵ was manufactured by each under an identical formula and was dispensed generically. The court thus held that the companies providing DES to the market which served the plaintiff in Sindell at the time the plaintiff's mother took the drug causing the plaintiff's injuries stood a chance of having caused her injuries proportional to its share of the market. The court also held that the liability for plaintiff's damages should be apportioned along the same proportional lines.

Although the market share theory of liability adopted in Sindell has been advanced as a basis of possible liability in asbestos related lawsuits where a plaintiff could not name the manufacturers of the products he was exposed to, it has been met with consistent disapproval. ⁶ Those cases cited by plaintiffs in which the market share theory of liability has apparently been adopted to dispense with the necessity of proving a link of causation between injury and a particular defendant's product have either been subsequently reversed, ⁷ or are cases from intermediate or trial courts reported unofficially. ⁸

Plaintiffs maintain that those cases which have disapproved the market share theory of liability in the context of asbestos related injuries are distinguishable from the present case on the basis that each involved not only unidentified tort-feasors but also identified tort-feasors. In those cases the market share liability theory was found inapplicable to keep the unidentified tort-feasors in the action. Plaintiffs maintain that it was the presence of the identified tort-feasors upon which those courts rested their decisions, and contrast that situation with the present where plaintiffs maintain they can identify no individual tort-feasor. Thus plaintiffs argue that pure policy reasons should allow them to maintain their action against the named defendants under a theory of collective liability, since no defendants would otherwise remain in the case.

Although the cases disapproving the application of market share liability to the asbestos litigation field did, with varying degrees of emphasis, cite the presence of identified tort-feasors as a reason for not applying market share theory, they also acknowledged other factors distinguishing asbestos litigation from the factual situation in which Sindell was decided. ⁹ It is of major importance that Sindell was decided in the context of a product that was truly fungible. DES was produced from a single formula and produced injury when used in a singular context; i.e. when given to pregnant women. Asbestos, on the other hand, is a name applied to a family of minerals, each member of which carries a different degree of risk: ¹⁰

The asbestos family consists of more than 30 different minerals of fibrous structure. The minerals' physical properties vary so that only six varieties are of substantial economic value. These six minerals are chrysotile, crocidolite, amosite, anthophyllite, tremolite, and actinolite. Chrysotile, known for its silky white color, its durability, and its flexibility, is the most widely used asbestos fiber. Manufacturers use it in the production of asbestos textiles, cement products, friction materials, insulation, and paper products. It is the least dangerous of the economically useful fibers. Crocidolite, a harsher, blue fiber, is used in pipes, cement products, textiles, and felts for plastics. Crocidolite, which is resistant to acids and alkalides, is more difficult to process than many of the other fibers and is the most dangerous of the asbestos fibers. Amosite is a harsh, brown fiber. It is extremely heat resistant, and manufacturers use it in cement, pipes, refractory tiles, and plastic reinforcement. It is a moderately dangerous fiber. Anthophyllite is used in cement production and the chemical industry. Tremolite is used for talc filters and in the chemical industry. Actinolite usually is not used commercially.

Compounding the variables arising from the presence of different minerals with different risk factors is the fact that asbestos is present in more than three thousand products commonly found in the home and work environments: ¹¹

Primary uses of asbestos include floor tile; gaskets and packing; friction...