District of Columbia v. OWENS-CORNING FIBERGLAS CORPORATION

• Court: D.C. Court of Appeals
• Writing for the Court: MACK, BELSON and TERRY, Associate
• Citation: District of Columbia v. OWENS-CORNING FIBERGLAS CORPORATION, 572 A.2d 394 (D.C. 1989)
• Decision Date: 24 August 1989
• Docket Number: No. 87-1254.,87-1254.
• Parties: DISTRICT OF COLUMBIA, Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Appellees.

572 A.2d 394

DISTRICT OF COLUMBIA, Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, et al., Appellees.

No. 87-1254.

District of Columbia Court of Appeals.

Argued March 1, 1989.

Decided August 24, 1989.

Rehearing Granted and Opinion Modified March 8, 1990.

Rehearing En Banc Denied March 8, 1990.

Lutz Alexander Prager, Asst. Deputy Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellant.

Paul A. Zevnik, for appellee GAF Corp., with whom Andrew A. Cohen and L. Elise Dieterich, Washington, D.C., for appellee GAF Corp., and William S. Gardner, Thomas J. O'Brien, and Michel Y. Horton, Washington, D.C., for appellee U.S. Gypsum Co., were on the brief.

John F. Mahoney, Jr., Washington, D.C., entered an appearance for appellee Owens-Corning Fiberglas Corp.

Chris Russo entered an appearance for appellees Celotex Corp. and Carey Canada, Inc.

Richard McMillan, Jr., Washington, D.C., entered an appearance for appellee Eagle-Picher Industries.

Kevin McCormick entered an appearance for appellee Armstrong World Industries.

Quentin R. Corrie, Falls Church, Va., entered an appearance for appellee Keene Corp.

Edgar A. Sabanegh, Fairfax, Va., entered an appearance for appellee Fibre-board Corp.

Andre Jay Graham and Lee H. Ogburn, Baltimore, Md., entered appearances for appellees Southern Textile Corp. and H.K. Porter Co.

John G. Calender, Washington, D.C., entered an appearance for appellee Owens-Illinois, Inc.

Richard W. Boone, Arlington, Va., and Vicki J. Hunt, Rockville, Md., entered appearances for appellee CertainTeed Corp.

Edward J. Lopata, Baltimore, Md., and Dwight D. Murray, Washington, D.C., entered appearances for appellee W.R. Grace and Co.

John M. Bray and Charles B. Wayne, Washington, D.C., entered appearances for appellee Nat. Gypsum Co.

Patrick Mochu entered an appearance for appellee U.S. Mineral Products Co.

Charles R. Bruton, Philadelphia, Pa., and Shelley Spencer entered appearances for appellee Pfizer, Inc.

Theresa Hajost, Washington, D.C., entered an appearance for appellee Georgia-Pacific Corp.

Marianne Eby entered an appearance for appellee Proko Industries, Inc.

Steven D. Cundra and Rochelle Hindman, Washington, D.C., entered appearances for appellee Flintkote Co.

John B. Isbister and William W. Carrier, Baltimore, Md., entered appearances for appellee Raymark Industries, Inc.

Stephen A. Bogorad entered an appearance for appellee Pittsburgh Corning Corp.

Bradley B. Cavedo, Richmond, Va., entered an appearance for appellees Turner and Newall PLC, J.W. Roberts, Ltd., and Turner Asbestos Fibres, Ltd.

Kevin J. McCarthy and Charles E. Gallagher entered appearances for appellee Asbestos Corp., Ltd.

Before MACK, BELSON and TERRY, Associate Judges.

MACK, Associate Judge:

The District of Columbia brought suit, sounding in tort, against thirty-seven miners, manufacturers, sellers and distributors of asbestos, a toxic substance until recently in common use in building construction, to recover removal costs and other damages associated with asbestos installation in roughly 2400 public buildings, including schools, libraries, hospitals, government offices, and public housing. The trial court granted summary judgment as to about eighty percent (80%) of the claims, holding them to be barred by the then-effective statute of limitations, D.C.Code § 12-301 (1981),¹ and statute of repose on building improvements, D.C.Code § 12-310 (1981).² The District contended, and contends on appeal, that it enjoys sovereign or municipal immunity from the running of the statutes of limitations and repose, particularly when suing in its governmental capacity to protect public safety or health.

Notwithstanding this contention, while the case was still pending, the Council of the District of Columbia passed legislation, D.C.Law 6-202,³ specifically exempting the District from these provisions. By its terms, the law applied retroactively to all cases pending as of July 1, 1986, and therefore to the instant case. However, as the legislation awaited expiration of the thirty-day congressional approval period before becoming effective, the trial court entered an order dismissing the claims now on appeal.

Before this court, the District argues that it enjoyed sovereign immunity by virtue of common law, or, in the alternative, by the effect of statute. Appellees contest both arguments. They argue that the District is a municipality unentitled to any of the incidents of sovereignty, and renew their contention that the retroactive legislation, passed for the very purpose of curing the District's defective immunity, violated due process principles and the separation of powers.

We conclude that the District of Columbia enjoys a common-law municipal immunity from the effects of the statutes of limitations and repose when suing in its municipal capacity to vindicate public rights. Because this ruling is adequate to reinstate the claims dismissed by the trial court, we find it unnecessary to reach issues relating to the constitutional validity of D.C.Law 6-202.⁴ We begin our analysis with a more detailed review of the nature of this litigation, including the interests at stake and procedural posture of the case. We then proceed to the merits.

I. BACKGROUND

A. The Asbestos Hazard and Its Public Health Consequences⁵

"Asbestos" is the generic term for a group of naturally occurring hydrated magnesium or calcium silicate fibers consisting of "long, thin, rock crystals formed from old rock by metamorphism" and obtained by mining. H. POLLACK, MATERIALS SCIENCE AND METALLURGY 417 (3d ed.1981); 4 L. GORDY & R. GRAY, ATTORNEYS' TEXTBOOK OF MEDICINE ¶ 134A.30 (3d ed.1988). Because its long fibers can be dissolved, bonded, compacted, or spun into fire-, heat- and chemical-resistant materials, asbestos is easily manufactured into automobile linings, aircraft air ducts, fireproof gloves and clothing, insulating board, fireproof cloth, shingles, tiles, siding and pipe covering. H. POLLACK, supra, at 417. Under pressure, it may be molded with cement to produce asbestos board, or combined with sodium silicate to make thin paper sheets, useful to protect pipes, gaskets, and electrical wiring from fire or heat. Id. at 417-18. It may be bound with rubber to package chemicals, or with clay to insulate against high voltage. Id. at 418. Since the nineteenth century asbestos has also been widely used to insulate boilers, turbines, ovens, kilns, and other high-temperature equipment. P. BRODEUR, OUTRAGEOUS MISCONDUCT: THE ASBESTOS INDUSTRY ON TRIAL 11 (1985).

Because of its protective qualities and its versatility, asbestos has long been in wide use in a variety of settings. Consequently, large numbers of people have lived with, worked with, and been exposed to environments containing, asbestos. It has been incorporated into manufactured products such as protective clothing, containers and heavy equipment, and it has been used extensively as a fire-retardant in building construction. H. POLLACK, supra, at 417-18; L. GORDY & R. GRAY, supra, ¶¶ 134A.30, 134A.31. In efforts to prevent tragedies, builders have used asbestos in public facilities housing large numbers of workers, residents, visitors and other occupants, such as schools, hospitals, offices, and large-scale housing. See P. BRODEUR, supra, at 324. Further, hundreds of thousands of workers in the mining and manufacturing industries have worked directly with raw asbestos and asbestos products, exposing themselves unwittingly to extraordinary health hazards. See generally id.; see L. WHITE, HUMAN DEBRIS: THE INJURED WORKER IN AMERICA 15 (1983); W. HAMMER, OCCUPATIONAL SAFETY MANAGEMENT AND ENGINEERING 406 (3d ed. 1985).

The nature of these hazards has long been known. Greek and Roman chroniclers observed a sickness of the lungs in slaves who wove asbestos fabric. P. BRODEUR, supra, at 10. Modern knowledge of asbestos-related diseases dates back at least to the turn of the century, when Dr. H. Montague Murray, a British physician, discovered, in the autopsy of an asbestos textile worker, that the patient had suffered from severe pulmonary fibrosis, a degenerative disease of the lung tissue, and linked that condition to asbestos spicules found in the patient's lungs. Id. at 11. Since then, an increasing flow of medical literature has documented the incidence of lung diseases associated with exposure to asbestos.⁶ Asbestos is highly friable, and upon disintegration, its particles float freely in the air, dusting skin and garments, and thus come to be handled and inhaled. Penetration of the skin can cause "asbestos warts." 4 L. GORDY & R. GRAY, supra, ¶ 134A.33. Much more serious diseases result from inhalation, including cancer of the lungs, bronchi, stomach and intestines; mesothelioma, a cancer of the chest wall (pleural mesothelioma) or abdominal cavity (peritoneal mesothelioma); and asbestosis, a fatally degenerative disease of the lung tissue involving heavy internal scarring.⁷Id., ¶ 134A.34. Asbestos exposure is known to increase the risk of lung cancer five-fold, and in combination with heavy smoking, can multiply that risk 87 times. Id., ¶ 134A.34(3). Studies have shown that 40% to 53% of insulation and shipyard workers with substantial exposure to asbestos have died of asbestos-related diseases. See L. WHITE, supra, at 15. In a seminal study, the incidence of asbestosis in workers ten years after their first exposure was 10.4%; twenty years after, 44.1%; and forty years after, 94.2%. Selikoff, Churg & Hammond, The Occurence of Asbestosis Among Industrial Workers, 132 ANN. NEW YORK ACAD. SCI. 139, 147 (1965).

It is impossible to appreciate fully the social costs of these diseases without approaching their most distinctive feature: asbestosis, mesotheliomas and other asbestos-related cancers can result from relatively minimal exposure in a variety of environments, and do...