Catrett v. Johns-Manville Sales Corp., JOHNS-MANVILLE
| Decision Date | 07 August 1987 |
| Docket Number | JOHNS-MANVILLE,No. 83-1694,83-1694 |
| Citation | 826 F.2d 33,263 U.S.App. D.C. 399 |
| Parties | , 8 Fed.R.Serv.3d 656, Prod.Liab.Rep.(CCH)P 11,506 Myrtle Nell CATRETT, Administratrix of the Estate of Louis H. Catrett, Deceased, Appellant, v.SALES CORPORATION, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-02232).
Peter T. Enslein, Washington, D.C., with whom Peter T. Nicholl, Baltimore, Md., and James F. Green, Washington, D.C., were on the brief, for appellant.
Leland Van Koten, with whom H. Emslie Parks, Baltimore, Md., was on the brief, for appellees.
Before WALD, Chief Judge, BORK and STARR, Circuit Judges.
Opinion for the Court filed by Circuit Judge STARR.
This case is before us on remand from the Supreme Court. The sole question is whether the District Court properly granted summary judgment in favor of an asbestos manufacturer in a suit brought by the survivor of a victim of asbestosis. The underlying litigation began in 1980 when Myrtle Nell Catrett, the appellant in this action, commenced suit in federal district court against 15 named corporations that manufactured or distributed products containing asbestos. Mrs. Catrett's husband, Louis Catrett, had died a year earlier, having devoted a lifetime's work to construction activities involving the use of various asbestos products.
One of the defendants named in Mrs. Catrett's lawsuit was Celotex Corporation, the sole defendant now before us. The District Court granted Celotex's motion for summary judgment, concluding that there was no evidence of Mr. Catrett's exposure to Celotex's products. In our earlier opinion in this case, however, a divided panel reversed. In the panel majority's view, Celotex, by offering no supporting evidence, failed to file a properly supported motion for summary judgment as required by Federal Rule of Civil Procedure 56(e). See 756 F.2d 181 (D.C.Cir.1985). Since the majority found Celotex's motion facially inadequate, we did not consider whether Mrs. Catrett's response sufficed to demonstrate a "genuine issue for trial." See id. at 184-85; Fed.R.Civ.P. 56(e) ().
The Supreme Court reversed. 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Agreeing with Judge Bork's dissent, the Court instructed that while "a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' " id. at 2553 (quoting Fed.R.Civ.P. 56(c)), that support its motion, such an identification is sufficient properly to support a summary judgment motion. Having thus concluded that Celotex had met its initial burden of production and filed a proper summary judgment motion, 1 the Court reversed and remanded the case, suggesting that our "superior knowledge of local law" made us "better suited" to address questions we had previously found unnecessary to consider, namely
the adequacy of the showing made by [Mrs. Catrett] in opposition to [Celotex's] motion for summary judgment, or ... whether such a showing, if reduced to admissible evidence, would be sufficient to carry [Mrs. Catrett's] burden of proof at trial.
Id. at 2555. We thus are called upon to determine whether Mrs. Catrett's showing was sufficient to avoid summary judgment under Federal Rule of Civil Procedure 56(e).
Before proceeding to an evaluation of Mrs. Catrett's showing, we first need to review, briefly, the course of this litigation as it relates to Celotex. The first significant event bearing on the summary judgment issue occurred in February 1981 with the filing of a joint set of interrogatories by all defendants. Three of these interrogatories are particularly relevant to our inquiry. The first, number 26, asked Mrs. Catrett to identify "persons having knowledge of facts relevant to the subject matter in this lawsuit" and to indicate which of those persons she "intend[ed] to produce as witnesses in the trial in this action." Docket Entry (D.E.) 47 at 10. The second and third, numbers 51 and 52, were more specific, seeking detailed information concerning Mr. Catrett's work with asbestos, asking, inter alia, for the "type and identity of each such asbestos material with which [he] had contact." Id. at 14-16.
Mrs. Catrett filed her answers in June 1981. Her response to numbers 26, 51, and 52 was the same; she simply indicated that she would respond later, in supplemental answers. See D.E. 61 at 18, 25. 2
Three months later, in September 1981, Celotex filed its first motion for summary judgment, the central thrust of which was that Mrs. Catrett had "failed to show the decedent came into contact with any product containing asbestos designed, manufactured, or distributed by Celotex." D.E. 77.
Mrs. Catrett filed an opposition to that motion in October 1981. 3 In response to the contention that she had failed to demonstrate her late husband's exposure to Celotex's products, Mrs. Catrett directed the court's attention to three items, which she claimed "[a]t the very least ... demonstrate that there is a genuine factual dispute for trial": (1) a transcript of Mr. Catrett's testimony in a workmen's compensation claim, in which he indicated his exposure to a product called "Firebar" while working for a company called Anning-Johnson in the Chicago, Illinois area; (2) a letter from the Assistant Secretary of Anning-Johnson, T.R. Hoff, to a Mr. O'Keefe of Aetna Casualty & Surety, Anning-Johnson's insurance company, reporting on Mr. Catrett's employment with Anning-Johnson 4; and (3) a letter from Aetna's Mr. O'Keefe to Mrs. Catrett's counsel essentially restating the contents of the Hoff letter. D.E. 87 5. In the wake of Mrs. Catrett's filing, Celotex in November 1981 withdrew its motion for summary judgment. D.E. 97.
One month later, Celotex took another tack, filing a motion for a change of venue. The motion sought transfer of the case to the Northern District of Illinois. D.E. 129. In its accompanying Memorandum of Points and Authorities, Celotex set forth the following basis for its motion: Mr. Catrett was based in the Chicago area "at all times during his alleged exposure to any product manufactured by The Corporation and/or its subsidiaries." Id. Celotex attached to its memorandum four supporting exhibits, two of which are relevant here. The first, labeled "Deposition of Decedent," was a portion of the same workmen's compensation testimony Mrs. Catrett had submitted in her opposition to Celotex's earlier (withdrawn) motion for summary judgment. Compare id. Exhibit A with D.E. 87 Exhibit E. As noted above, in this testimony Mr. Catrett recounted his use of an asbestos product named Firebar while working for Anning-Johnson. The second exhibit of relevance for our purposes was a collection of purchase orders reflecting the sale and shipment of Firebar to Anning-Johnson. Several of these documents evidenced the shipment of Firebar from an entity called "Carey-Canadian Asbestos," which is identified in those documents as "A Division of Panacon Corporation," to Anning-Johnson during 1971. That was, of course, the period when Mr. Catrett worked at Anning-Johnson in the Chicago area. See id. Exhibit D. 6
Shortly after filing its change of venue motion, Celotex renewed its motion for summary judgment. The second motion was differently crafted from the first, aborted motion; now, Celotex contended that Mrs. Catrett had failed to show exposure "within the jurisdictional limits" of the District Court, a rather different point than that advanced in its geographically unlimited initial motion. D.E. 137. Celotex's memorandum supporting this second motion likewise limited the claim to Mrs. Catrett's asserted failure to show exposure to a lack of "any such evidence [of exposure to Celotex products] within the jurisdictional confines of Court." Id. (emphasis added).
In January 1982, Mrs. Catrett filed an opposition to Celotex's new summary judgment motion, again directing the court's attention to the three evidentiary items upon which she had originally relied: (1) the workmen's compensation testimony of Mr. Catrett; (2) the Hoff letter; and (3) the O'Keefe letter. D.E. 142. Then in February 1982, Mrs. Catrett filed Supplemental Answers to Defendant's Interrogatories, including interrogatory number 26, referred to above. 7 In her supplemental response, Mrs. Catrett listed "T.R. Hoff, Assistant Secretary, Anning-Johnson Company" as a person "having knowledge of facts relevant to the subject matter in this lawsuit." She further indicated that Mr. Hoff would be called as a witness at trial. D.E. 161.
This is where matters stood in July 1982, when the District Court held a hearing on Celotex's motions for a change of venue and summary judgment. In that hearing, counsel for Celotex addressed the three items of evidence relied upon by Mrs. Catrett. Although Celotex had itself submitted the decedent's workmen's compensation testimony to support its change of venue motion (and argued that the District Court should consider the testimony "for the limited purposes of use in this motion" 8), Celotex nonetheless objected to the testimony on the ground that it "would not be admissible." D.E. 184B at 4 (). No such objection, however, was interposed with respect to the Hoff letter's admissibility or relevance, although to be sure Celotex did generally disparage the letter's value. At the conclusion of the hearing, the District Court granted Celotex's motion for summary judgment on the spot,...
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