Harville v. Johns-Manville Products Corp.
| Citation | 731 F.2d 775 |
| Decision Date | 07 May 1984 |
| Docket Number | JOHNS-MANVILLE,82-7197,Nos. 82-7167,s. 82-7167 |
| Parties | Van HARVILLE, et al., Plaintiffs-Appellants, v.PRODUCTS CORP., et al., Defendants-Appellees.SALES CORP., et al., Third Party-Plaintiffs-Appellants, v. YARWAY CORPORATION, et al., Third Party-Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
Roy C. Williams, Pascagoula, Miss., Michael J. McElhaney, Jr., Lively M. Wilson, Louisville, Ky., Donald F. Pierce, Mobile, Ala., for Johns-Manville.
Jasper P. Juliano, Jack J. Hall., Birmingham, Ala., for Yarway Corp.
Horace Moon, Jr., Mobile, Ala., for Hopeman Brothers.
Christopher G. Hume, III, Joe H. Little, Jr., Mobile, Ala., for J.P. Stevens & Co., Inc.
J. Jerry Langford, Clifford K. Bailey, III, Jackson, Miss., for Amatex Corp.
James A. Philips, Mobile, Ala., for John Crane Houdaville, Inc.
Robert N. Kelly, Washington, D.C., for United States.
William L. Lee, III, Alan C. Livingston, Dothan, Ala., for Darcoid Co.
Timothy P. McMahon, Mobile, Ala., for Garlock, Inc.
Robert A. Huffaker, Montgomery, Ala., for Sepco-Corp.
E. Elliott Barker, Mobile, Ala., John M. Toriello, Stephen K. Carr, New York City, for Owens Illinois, Inc.
Robert Smith, Mobile, Ala., for Nicolet, Inc.
Peter V. Sintz and Mary Beth Mantiply, Mobile, Ala., for Celotex Corp.
Larry W. Harper, Birmingham, Ala., for Pittsburg Corning.
Thomas W. Tardy, Jackson, Miss., Beth McFadden Rouse, Mobile, Ala., for Combustion Engineering.
John N. Leach, Jr., E.L. McCafferty, Mobile, Ala., for Eagle Picher.
W. Michael Atchison, Birmingham, Ala., for Raybestos-Manhattan (Raymark Industries, Inc.).
Wes Pipes, Walter M. Cook, Jr., Mobile, Ala., for Forty-Eight Insulations, Inc.
James H. Crosby, Vincent A. Noletto, Jr., Mobile, Ala., for Owens Corning Fiberglass Corp.
Frank Grey Reddit, Jr., Mobile, Ala., for H.K. Porter Co.
Richard F. Pate, Pate & Peters, Mobile, Ala., for plaintiffs-appellants.
Appeals from the United States District Court for the Southern District of Alabama.
Before KRAVITCH, JOHNSON and HATCHETT, Circuit Judges.
This case involves the question whether the maritime jurisdiction of the federal courts encompasses damage claims by land-based ship repair workers against manufacturers and distributors of asbestos products for injuries allegedly induced by exposure to air-borne asbestos fibres. We hold that, because the plaintiffs' claims have insufficient nexus to the traditional concerns of maritime law and because exercise of federal maritime jurisdiction would not advance the policies behind a uniform federal law of admiralty, maritime jurisdiction does not extend to these claims.
This is one of thousands of suits that workers throughout the nation in a variety of occupations have filed seeking compensation for asbestos-related injuries. The plaintiffs are all past or present employees of the Alabama Dry Dock and Shipbuilding Company ("ADDSCO") who worked at ADDSCO's Mobile, Alabama, shipyard. Most of them were employed there for between twenty and forty years. The plaintiffs worked as insulators, pipe-fitters, welders, boilermakers, machinists, foremen, and general laborers in the construction and repair of vessels. Since World War II, the shipyard and most of the plaintiffs have been employed in ship repair and refitting rather than in new vessel construction. The plaintiffs' duties included either tearing out and replacing asbestos insulation or working in a place where insulation was being replaced. During such work they received heavy exposure to, and breathed in large amounts of, air-borne asbestos dust.
The plaintiffs allege that they now suffer a variety of pulmonary diseases as a result of their exposure to asbestos. The former Fifth Circuit described the pathology of one such condition in Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1083 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974):
The medical testimony adduced at trial indicates that inhaling asbestos dust in industrial conditions, even with relatively light exposure, can produce the disease of asbestosis. The disease is difficult to diagnose in its early stages because there is a long latent period between initial exposure and apparent effect. This latent period may vary according to individual idiosyncrasy, duration and intensity of exposure, and the type of asbestos used. In some cases, the disease may manifest itself in less than ten years after initial exposure. In general, however, it does not manifest itself until ten to twenty-five or more years after initial exposure. This latent period is explained by the fact that asbestos fibers, once inhaled, remain in place in the lung, causing a tissue reaction that is slowly progressive and apparently irreversible. Even if no additional asbestos fibers are inhaled, tissue changes may continue undetected for decades. By the time the disease is diagnosable, a considerable period of time has elapsed since the date of the injurious exposure. Furthermore, the effect of the disease may be cumulative since each exposure to asbestos dust can result in additional tissue changes. A worker's present condition is the biological product of many years of exposure to asbestos dust, with both past and recent exposures contributing to the overall effect. All of these factors combine to make it impossible, as a practical matter, to determine which exposure or exposures to asbestos dust caused the disease.
(footnote omitted). Asbestos-related disease is debilitating and often fatal.
The plaintiffs seek compensation from a number of manufacturers and distributors of asbestos products. They allege that the defendants knew, or should have known, of the dangers associated with exposure to their products. The plaintiffs further allege that the defendants failed to warn them or their employer of the risks of asbestos exposure or of safety measures that might have been taken to minimize those risks. The plaintiffs claim that the defendants' acts and omissions directly caused their injuries.
Harville and other named plaintiffs filed the complaint that began this litigation on November 22, 1978. The original complaint based jurisdiction on diversity, 28 U.S.C.A. Sec. 1332, and asserted only state law causes of action. The magistrate to whom the case was referred ordered the plaintiffs to file written notice of which, if any, of their claims "are governed by the substantive law of admiralty." The plaintiffs complied by filing a statement contending that "all of their claims are governed by the substantive law of admiralty." At the same time, they filed an objection to the magistrate's order, which made clear that their statement of applicable law should not be construed as an election of admiralty procedures under Fed.R.Civ.P. 9(h). Subsequently, the plaintiffs amended their complaint to assert only tort-based theories of recovery and added several claims for relief based explicitly on federal maritime law.
Because the determination of a number of pending motions required prior resolution of the choice of law issue, the magistrate scheduled a hearing under Fed.R.Civ.P. 16 at which the plaintiffs would be required to produce evidence in support of a "prima facie" case for the applicability of admiralty law. The magistrate advised the parties that he intended at the end of this hearing to render a finding of whether the plaintiffs had made out a case for the application of admiralty law. If this finding was adverse to the defendants, they would be permitted to rebut the prima facie case. On March 13, 1981, after conducting the Rule 16 proceedings, the magistrate rendered a "Determination ... of Applicable Law." The magistrate analyzed the choice of law question under the two-part jurisdictional test of Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed. 454 (1972). He found that the plaintiffs' claims met the requirement that "the wrong bear a significant relationship to traditional maritime activity," id. at 268, 93 S.Ct. at 504, because of the importance of the plaintiffs' employment to maritime commerce. Nevertheless he held admiralty jurisdiction inapplicable because the "locality" test, that is the requirement that the wrong occur on navigable waters, is not met where the plaintiff suffers an injury resulting from exposures that occurred on land as well as over water. Moreover, the magistrate invoked the "maritime and local" doctrine to substitute state for federal substantive law because of the local nature of the dispute. On November 2, 1981, the district court vacated and remanded the magistrate's order for reconsideration in light of the Fourth Circuit's decision in White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982), which held maritime jurisdiction to apply in a similar factual context. Upon reconsideration, the magistrate essentially adhered to his previous position.
Consistent with his conclusion that the substantive law of Alabama, rather than federal maritime law, applied to the plaintiffs' claims, the magistrate issued a recommendation that, because Alabama law does not allow contribution among joint tort-feasors, Consolidated Pipe & Supply Co. v. Stockham Valves & Fittings, Inc., 365 So.2d 968, 970 (Ala.1978), certain third-party claims based on contribution theories be dismissed for failure to state a claim upon which relief can be granted. On April 13, 1982, the district court adopted the magistrate's recommendation and dismissed the contribution-based claims. The court certified its order as a final judgment under Fed.R.Civ.P. 54(b). The plaintiffs and third-party plaintiffs filed timely notices of appeal. On May 17, 1982, the district court adopted the magistrate's recommendation that the plaintiffs'...
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