Chism v. W.R. Grace & Co.

• Decision Date: 21 October 1998
• Docket Number: No. 98-1302,98-1302
• Citation: 158 F.3d 988
• Parties: Prod.Liab.Rep. (CCH) P 15,398 Hazel CHISM, Patricia Meier, Mark Chism, Kent Chism, Appellants, v. W.R. GRACE & COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 988

158 F.3d 988

Prod.Liab.Rep. (CCH) P 15,398

Hazel CHISM, Patricia Meier, Mark Chism, Kent Chism, Appellants, v. W.R. GRACE & COMPANY, Appellee.

No. 98-1302.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 21, 1998.

Decided Oct. 21, 1998.

Stephen Henry Ringkamp, St. Louis, M0, argued (Mark J. Becker, Paul H. Hulsey and Sheryl Moore Ingram, on the brief), for appellant.

Thomas C. Walsh, St. Louis, MO, argued (Peter W. Herzog, III, on the brief), for appellee.

Before BOWMAN, Chief Judge, WOLLMAN, and KELLY, ¹ Circuit Judges.

BOWMAN, Chief Judge.

Glenwood Chism, an employee of A.P. Green Refractories Company ("A.P.Green"), died from malignant mesothelioma, a cancer affecting the lining of the lungs associated with exposure to asbestos. The widow and children of Mr. Chism ("appellants") sued numerous manufacturers of asbestos-containing products, including W.R. Grace & Company ("Grace"), for wrongful death, negligence, and strict liability, asserting that Mr. Chism contracted mesothelioma through exposure to their products during his employment with A.P. Green. The District Court ² granted summary judgment in favor of all manufacturers on the ground that appellants had failed to establish a causal connection between the manufacturers' products and the injury to Mr. Chism. Appellants appeal only the grant of summary judgment in favor of Grace. We affirm.

I.

Mr. Chism worked for A.P. Green from 1952 until 1985. Mr. Chism testified in his deposition that he worked as a mixing operator and bagger in the specialties department at A.P. Green's Mexico, Missouri plant from 1952 to 1955 and again from 1957 to 1964. As a mixing operator, Mr. Chism would dump raw ingredients from overhead bins into a cart according to a recipe. Mr. Chism testified that he also would hand-scoop certain materials, such as raw asbestos, into the mixture. After a product was mixed, it was fed into a special machine for bagging. During the mixing and bagging process, Mr. Chism was exposed to large amounts of dust from raw asbestos, vermiculite, and other materials. Mr. Chism testified that he performed various other duties for A.P. Green after 1964, although he occasionally returned to the specialties department for brief periods of time. Mr. Chism left the company on December 31, 1985, and died on June 7, 1994.

Mr. Chism testified that one of the materials he added to mixtures when he worked in the specialties department was Zonolite vermiculite. The Zonolite Company originally manufactured Zonolite vermiculite and Grace continued to manufacture the product after it purchased the Zonolite Company in April 1963. Vermiculite is a mineral that is mined, processed, heated (expanded), and sold for a variety of uses. Raw vermiculite ore sometimes contains asbestos contaminants in the form of tremolite. According to Grace, processing and expanding the vermiculite can remove virtually all asbestos contaminants although a trace amount may remain.

II.

We review the District Court's grant of summary judgment de novo. See Hindman v. Transkrit Corp., 145 F.3d 986, 990 (8th Cir.1998). We must view the facts in the light most favorable to appellants, giving them the benefit of all reasonable inferences to be drawn from the underlying facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). We will affirm the grant of summary judgment if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

Once Grace meets its initial burden of showing there is no genuine issue of material fact, appellants may not rest upon the allegations of their pleadings but rather must set forth specific facts, by affidavit or other evidence, showing that a genuine issue of material fact exists. See Fed.R.Civ.P. 56(e). Appellants "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348; they must show there is sufficient evidence to support a jury verdict in their favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rule 56(c) "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

This is a diversity action in which Missouri law applies. Appellants have asserted claims for negligence, strict liability, and wrongful death. In a negligence claim, Missouri law requires a plaintiff to establish a causal connection between the defendant's conduct and the plaintiff's resulting injury. See Kraus v. Celotex Corp., 925 F.Supp. 646, 651 (E.D.Mo.1996) (citing Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo.1984)). A causal connection between the defendant and the injury-producing agent must also be established in strict liability claims. See id. (citing Zafft, 676 S.W.2d at 244). To establish the necessary causal connection, appellants must prove both causation in fact ("but for" causation) and proximate causation. See Paull v. Shop 'N Save Warehouse Foods, Inc., 890 S.W.2d 401, 403 (Mo.Ct.App.1995). The Missouri Supreme Court has stressed that "but for causation" is an absolute minimum because it establishes causation in fact. See Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo.1993).

In wrongful death cases based on asbestos exposure, Missouri law requires the plaintiff to establish that each "defendant's products directly contributed to the death." Kraus, 925 F.Supp. at 651 (citing Hagen v. Celotex Corp., 816 S.W.2d 667, 669 (Mo.1991)). The "directly contributed" standard requires evidence, in the form of expert testimony, "that the product of each defendant sought to be held liable was a 'substantial factor' in causing the harm." Hagen, 816 S.W.2d at 670. "Substantial factor" means the manufacturer's conduct "had such an effect that reasonable people would regard it as the cause of harm." Ray v. Upjohn Co., 851 S.W.2d 646, 654 (Mo.Ct.App.1993). If appellants can "only allege that, even when all of the tort-feasors are taken together, the negligence of the respondents might have contributed to the death ... the petition fails to allege facts that indicate that respondents' negligence was a substantial factor in causing the death." Wollen v. DePaul Health Ctr., 828 S.W.2d 681, 683 (Mo.1992).

Appellants misread Callahan when they suggest the Missouri Supreme Court rejected the substantial factor test in favor of a "directly caused or directly contributed to cause" test. The two tests are not mutually exclusive. In fact, as Hagen explained, "directly contributed" is shown by establishing that each defendant's product was a substantial factor in causing the harm. See Hagen, 816 S.W.2d at 673. Appellants' suggested test arises from Missouri's standard jury instruction in which the jury is instructed that the defendant's conduct must "directly cause" or "directly contribute to cause" plaintiff's injury. Callahan, 863 S.W.2d at 863 (citing MAI [Missouri Approved Instruction] 19.01). This jury instruction is intended to encompass the terms "proximate cause," "but for causation," and "substantial factor." See id. The Missouri Supreme Court has noted that the "substantial factor" language provides the standard for determining whether a submissible case has been made, while "directly caused or directly contributed to cause" is the proper language for a jury instruction. See Hagen, 816 S.W.2d at 673.

Whether the test is phrased as "substantial factor" or as "directly caused or directly contributed to cause," appellants have failed to produce sufficient evidence to present a genuine issue of material fact regarding causation. The present case is analogous to Hagen, which involved a wrongful death action brought against twelve asbestos manufacturers by the survivors of a woman who contracted mesothelioma from regularly washing her husband's asbestos-covered overalls. The Missouri Supreme Court found the woman's survivors had failed to establish anything other than "the death was caused by exposure to asbestos dust" and a particular manufacturer's "products may have supplied the fatal exposure." Id. at 671. The record did not contain any expert testimony that the manufacturers' products "directly contributed to the illness and death," and thus did "not establish causation under the standards of [Missouri] law." Id. at 670-71.

As in Hagen, appellants have failed to produce expert testimony that asbestos from Grace's products directly contributed to cause Mr. Chism's death. The testimony of appellants' expert, Dr. Carlos Bedrossian, is evidence that asbestos caused Mr. Chism's mesothelioma. Dr. Bedrossian testified in his deposition that one asbestos fiber can start the cancer process. Appellants thus assert that one fiber of vermiculite contaminated with tremolite (an asbestos element) could have caused Mr. Chism's death. Although appellants presented substantial evidence through deposition testimony that Mr. Chism was exposed to Zonolite vermiculite dust, ³ they failed to present evidence that the final Zonolite vermiculite product contained any asbestos. Nor have appellants presented evidence that any asbestos possibly contained in the vermiculite could be released as inhalable fibers. Thus there is no evidence that Grace's...