Goldman v. Johns-Manville Sales Corp.

• Decision Date: 14 October 1987
• Docket Number: No. 86-1470,JOHNS-MANVILLE,86-1470
• Citation: 514 N.E.2d 691,33 Ohio St.3d 40
• Parties: , 56 USLW 2292, Prod.Liab.Rep. (CCH) P 11,574 GOLDMAN, Executrix, Appellee, v.SALES CORP. et al.; Owens-Illinois, Inc. et al., Appellants.
• Court: Ohio Supreme Court

Page 40

33 Ohio St.3d 40

514 N.E.2d 691, 56 USLW 2292, Prod.Liab.Rep. (CCH) P 11,574

GOLDMAN, Executrix, Appellee, v. JOHNS-MANVILLE SALES CORP. et al.; Owens-Illinois, Inc. et al., Appellants.

No. 86-1470.

Supreme Court of Ohio.

Oct. 14, 1987.

Syllabus by the Court

1. Under alternative liability theory, plaintiff must prove (1) that two or more defendants committed tortious acts, and (2) that plaintiff was injured as a proximate result of the wrongdoing of one of the defendants. (Minnich v. Ashland Oil Co. [1984], 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, approved and followed.)

2. Alternative liability theory in an asbestos litigation case will be rejected where the plaintiff is unable to prove that the injury was caused by the asbestos-containing products of any of the defendants before the court.

3. Market-share liability is inappropriate as a viable theory of recovery in an asbestos litigation case, especially where it cannot be shown that all the products to which the injured party was exposed are completely fungible.

The appellee, Sylvia Goldman (hereinafter referred to as plaintiff or Goldman), filed a complaint on April 1, 1982, against various manufacturers and suppliers of asbestos-containing products. The complaint alleged that plaintiff's husband, Roy H. Goldman, had died on May 13, 1980, of mesothelioma, a type of cancer allegedly caused by exposure to asbestos. An amended complaint naming a total of twenty defendants was filed on April 20, 1982.

Roy Goldman was allegedly exposed to asbestos at the Sherlock Bakery in Toledo, where he worked as a baker from 1941 through 1960. A few years after Goldman left in 1960, the Sherlock Bakery was completely destroyed by fire. The products alleged in the complaint to have been present at the Sherlock Bakery were pipe insulation, ceiling board, oven lining, oven covering, wallboard, sheeting and gloves. Goldman concedes, however, that because of the passage of time and the destruction of the building, she is unable to identify any of the manufacturers of any of these products. As the litigation progressed, the case focused on whether asbestos pipe insulation, asbestos ceiling or wallboard, or asbestos oven tape were present at the bakery.

On November 30, 1982, the trial court stayed the entire suit because of the Chapter 11 bankruptcy filings of defendants Johns-Manville Sales Corp. and Unarco Industries, Inc. The court lifted the stay as to all defendants except Johns-Manville and Unarco on August 4, 1983. One defendant, Pittsburgh Corning Corp., was voluntarily dismissed on November 16, 1983. On December 20, 1983, four other defendants were dismissed without prejudice for want of prosecution. Two other defendants, Standard Asbestos Manufacturing and Insulation, and Forty-Eight Insulation Co., have apparently sought protection under the Bankruptcy Act during the pendency of the appeals at either the appellate level or in this court. There are, therefore, eleven defendants remaining in this case as appellants. ¹

Each defendant filed a motion for summary judgment sometime between December 6, 1983 and February 17, 1984. The defendants contended that summary judgment should be granted because the plaintiff has not been able to show causation. The defendants contended that the plaintiff had failed to show that her husband had been exposed to any asbestos products, or that any of the defendants had produced or supplied any products that were present at the Sherlock Bakery.

The plaintiff opposed the motions by submitting various affidavits and a deposition which, she contended, showed that there was a material issue of fact as to the asbestos exposure. Goldman conceded her inability to identify the producers of these products, but urged the court to accept the theories of alternative liability ² or market-share liability.

The trial court granted summary judgment in favor of all defendants on December 17, 1984. The court rejected both theories urged by the plaintiff, and granted the motions because the plaintiff had not shown causation. Upon appeal, the appellate court, in a split decision, reversed, holding that both alternative liability and market-share liability were applicable.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Gallon, Kalniz & Iorio Co., L.P.A., and David W. Zoll, for appellee.

Fuller & Henry and Robert A. Bunda, for appellants Owens-Illinois, Inc. et al.

Frutig, Polito & Travis Co., L.P.A., and Thomas R. Frutig, for appellants Keene Corp. et al.

Hesser, Armstrong & Disantis, and Richard J. Disantis, for appellant Raymark Industries, Inc.

Arter & Hadden, John D. Maddox, and Irene C. Keyse-Walker, for appellant Combustion Engineering, Inc.

Vorys, Sater, Seymour & Pease and Russell P. Herrold, Jr., urging reversal for amicus curiae, Ohio Manufacturers' Assn.

WOLFF, Justice.

In this case we are asked to decide whether the theory of alternative liability, as recognized by this court in Minnich v. Ashland Oil Co. (1984), 15 Ohio St.3d 396, 15 OBR 511, 473 N.E.2d 1199, is applicable to the facts of this case. If it is not, we then must decide whether we should recognize as a theory of recovery in this case the market-share theory of liability, as first espoused in Sindell v. Abbott Laboratories (1980), 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924, certiorari denied sub nom. E.R. Squibb & Sons v. Sindell (1980), 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140. The Court of Appeals for Lucas County in the instant cause held that the market-share theory would be recognized, and that both theories were applicable to this case. We reverse the court of appeals for the reasons that follow. ³

At the outset, it is important to understand that both alternative liability and market-share liability are exceptions to the general rule that a plaintiff has to prove an injury was caused by the negligence of a particular defendant. Both theories are judicially created, and shift the burden of proof to each defendant to show that the plaintiff was not injured by that defendant's negligence. Put another way, both theories merely relax the requirement that the plaintiff identify which one of a group of negligent tort-feasors caused the injury to the plaintiff. In the context of asbestos litigation, the plaintiff has the burden of proving exposure to asbestos-containing products. A defendant is not liable under either theory if the evidence fails to establish that Roy Goldman was exposed to the type of product it produced.

In this case, the trial court specifically found that Goldman was unable to identify either the products or the manufacturers of those products. The appellate court, however, characterized the issue in terms of the plaintiff's only being unable to identify the manufacturers of the products allegedly present at the bakery.

We have, therefore, reviewed the sufficiency of the affidavits and depositions introduced by the plaintiff in opposing the motions for summary judgment, in order to decide whether reasonable minds could differ on the question of what products were present at the Sherlock Bakery. Our review of the record convinces us that the evidence presented to the trial court was not sufficient, as a matter of law, to create an issue of material fact as to any product allegedly present at Sherlock, save one--asbestos tape.

The evidence introduced by the plaintiff consisted of various affidavits of experts, a doctor, and an individual who performed certain construction activities at the bakery. Also introduced was the deposition of Walter Rollman, a former maintenance man at Sherlock Bakery. There was also an affidavit by Rollman. We will address these items separately.

The affidavit of Steve Szeman avers that he had on numerous occasions entered the Sherlock Bakery in 1961, and was employed at another bakery as a plant engineer. The affidavit further states that he observed steam pipes wrapped in insulation, and white panels nailed to the ceiling. Szeman further averred that: "From my experience in the bakery industry, I believe that these items contained asbestos for heat and fire protection. * * * That I observed that [sic ] I believe was rockwood insulation between mesh walls in the ovens. The mesh walls appeared to be sealed with a plaster-like material. From my knowledge and experience in the bakery industry at that time, I believe that the plaster-like material contained asbestos." (Emphasis added.)

It is obvious that this affidavit does not comply with Civ.R. 56(E) which states that affidavits supporting or opposing motions for summary judgment must be made on personal knowledge, setting forth facts which would be admissible into evidence. Szeman's lack of personal knowledge as to the existence of asbestos at the Sherlock Bakery is also shown in his deposition, which was filed by the defendants on March 6, 1984:

"Q. * * * From your own personal knowledge, do you know whether or not there was any asbestos-containing products within the Sherlock Bakery?

"MR. YOUNG: Objection.

"A. No."

All the plaintiff's supporting affidavits suffer from the same lack of personal knowledge. Richard Lemen, an asbestos expert, was able to state only:

"That an employee of a bakery would, upon reasonable probability, be exposed to asbestos dust and fibers if asbestos pipe insulation, asbestos ceiling boards, and asbestos oven gaskets and cement were used in the bakery and ovens." (Emphasis added.)

Robert Bellner, who performed some remodeling on the bakery, was only able to state that he "believed" that four by eight foot boards he placed on the ceiling were made of asbestos.

The plaintiff also submitted the affidavit of Roy Steinfurth, who had extensive experience with asbestos and asbestos-related health risks in his capacity as a member of the OSHA Advisory Committee for the building and construction industry. This affidavit, dated February 14, 1984, states as...