Hoffman v. Allied Corp., 89-5764
| Decision Date | 26 September 1990 |
| Docket Number | No. 89-5764,89-5764 |
| Citation | 912 F.2d 1379 |
| Parties | Prod.Liab.Rep.(CCH)P 12,592 Dr. Steven HOFFMAN, as Personal Representative of the Estate of Milton Hoffman and Lillian Hoffman, Plaintiffs-Appellants, v. ALLIED CORP., et al, Defendants, Armstrong World Industries, Inc., Fibreboard Corp., GAF Corp., H.K. Porter Co., Inc., Keene Corp., Owens-Illinois, Inc., Raymark Industries, Inc., Southern Textile Corp., Turner & Newall, Limited, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Reed A. Bryan, McCune, Hiaasen, Crum, Gardner & Duke, Fort Lauderdale, Fla., for plaintiffs-appellants.
Gregory H. Maxwell, Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, Fla., for Armstrong, et al.
Fortson & White, Atlanta, Ga., for H.K. Porter and Southern Textile.
Tracy E. Tomlin, Stinson, Lyons, Gerlin & Bustamante, Miami, Fla., for Owens-Illinois, Inc. and Fibreboard Corp.
Appeal from the United States District Court for the Southern District of Florida.
Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and HOFFMAN *, Senior District Judge.
This case concerns a personal injury claim for damages arising out of an alleged incidental exposure to asbestos products over 40 years ago. Finding that plaintiffs-appellants Milton and Lillian Hoffman could not prove that Milton Hoffman either worked with or in close proximity to products manufactured by defendants-appellees Armstrong World Industries, et al. ("Armstrong"), and therefore failed to raise a genuine issue of material fact, the district court granted summary judgment for Armstrong. The Hoffmans appeal. Because we have determined that genuine issues of material fact exist, we reverse and remand for proceedings consistent with this opinion.
Milton Hoffman 1 and his wife, Lillian, are both Florida residents. Milton Hoffman worked as a lathe operator in the Brooklyn (N.Y.) Naval Shipyard's ordnance repair shop 2 for approximately 14 months during World War II. The Brooklyn Naval Shipyard was a large, waterfront facility where warships were overhauled during the war. The facility contained many buildings, as well as a dry dock. Milton Hoffman worked in Building 5, where the ordnance repair shop was located. The dry dock was near the water's edge, approximately 300 to 400 feet from Building 5.
Armstrong manufactured asbestos products, primarily thermal insulation, that were in use when Milton Hoffman worked at the shipyard. Further, Armstrong concedes that these products were in use at the time in various locations within the shipyard, especially on ships being repaired at the dry dock. Both parties agree, however, that no asbestos products were used within the ordnance repair shop itself.
Leo Rapacilo was an electrician who worked in close proximity to asbestos products on the ships in dry dock at the shipyard. In addition to working on the ships, he also occasionally worked in the ordnance repair shop in Building 5. (R 7-178, Rapacilo Affidavit). According to Rapacilo, the asbestos products used at the dry dock in their ordinary use created considerable dust in the air, and it was not unusual for dust to cover his clothing, hair, and exposed skin, even though he did not work directly with the insulation products. (R 7-178, Rapacilo Affidavit).
Milton Hoffman stated in an affidavit that the only method to ventilate the ordnance repair shop was to open its windows. (R 7-178, Hoffman Affidavit). These windows remained open during a substantial portion of the year, and dust could blow into the shop through the windows. (R 7-178, Hoffman Affidavit). The prevailing winds blew from the water's edge across the dry dock into the ordnance repair shop. (R 7-178, Hoffman Affidavit). Mr. Hoffman claimed that the breezes carried asbestos dust from the ships at the dry dock into the shop where he worked. (R 7-178, Hoffman Affidavit). Further, insulators and other shipyard workers, like Mr. Rapacilo, occasionally came into or worked in the ordnance repair shop, and they were sometimes covered with dust. (R 7-178, Hoffman Affidavit).
In 1983, a biopsy was performed on part of Milton Hoffman's lung. A pathologist at Mt. Sinai Medical Center in Miami Beach diagnosed him as suffering from pleural malignant mesothelioma. 3 In April of 1987, Dr. Mario Saldana also diagnosed Mr. Hoffman's condition as malignant mesothelioma.
In an affidavit filed by Armstrong, Dr. John Legowik admitted that the only known cause of mesothelioma is asbestos exposure, although he did not rule out the possibility of other causes. (R 3-73, Legowik Affidavit (emphasis in original)). Dr. Saldana, in his affidavit, opined that mesothelioma could result from very minuscule or minor exposures to asbestos dust, unlike asbestosis or other asbestos related diseases which require more substantial exposure. Both Dr. Legowik and Dr. Saldana agreed that in 85 percent of all documented mesothelioma cases the patients had been exposed to asbestos. In the other 15 percent of mesothelioma cases in which no direct history of asbestos exposure existed, Dr. Saldana attributed the cause to the very light exposure required to produce the disease. In his opinion, most, if not all, of those cases were caused by asbestos exposure despite the lack of available reliable history of asbestos exposure. Dr. Legowik refused to attribute mesothelioma to asbestos exposure, absent a finding of asbestos bodies in the patient's lung tissue by open lung biopsies or autopsy biopsy. 4 However, the Hoffmans opposed an autopsy upon Mr. Hoffman's death for religious reasons. Further, Dr. Saldana stated that an autopsy was unnecessary to determine whether mesothelioma was caused by asbestos exposure. 5
On March 30, 1987, the Hoffmans filed suit in federal district court for the Southern District of Florida. The complaint sounded in negligence, warranty, and strict liability, and also charged Armstrong with conspiracy to conceal information regarding the dangerous nature of asbestos. On July 14, 1988, upon motion for summary judgment by Armstrong, the district court referred the matter to the United States Magistrate for consideration. The Magistrate recommended that the district court grant the summary judgment based upon the discovery materials available at the time. 6 According to the Magistrate, nothing in the record could prove that Armstrong's In addition to the affidavits of Leo Rapacilo and Milton Hoffman noted above, the Hoffmans offered an affidavit by Dr. Joseph Wagoner. Dr. Wagoner, an epidemiology expert, opined that:
products were being used in Milton Hoffman's "work area." (R 7-162). Following the Magistrate's report and recommendation, the district court gave the Hoffmans an opportunity to supplement the record by filing affidavits to avoid final summary judgment
asbestos was the substantial causal factor in the induction of Milton Hoffman's malignant mesothelioma of the pleura. The dusts and fibers from defendants' products which have been identified and shown to have been in general use in the shipyard during the time of Mr. Hoffman's tenure there are the substantial causal factors of his said disease.... [T]he use of asbestos materials in shipyards releases asbestos dust into the air which typically hangs in the air and permeates the air throughout the work area, including areas removed from its point of release so that persons working in adjacent areas near the point source of asbestos dust could inhale asbestos fibers. Once released into the air, asbestos fibers drift with air currents thus spreading over time throughout a large area. Asbestos dust and fibers remain floating in the air once released and individuals not working directly with asbestos products are at risk of becoming diseased.
... [N]umerous articles and studies [have shown] the development of pleural mesothelioma among individuals ... living up to at least a half mile away from a given point source of asbestos dust and who have no direct contact with asbestos products.
(R 7-168, Wagoner Affidavit (emphasis added)).
Nevertheless, the district court granted summary final judgment. 7 The trial court determined that the Hoffmans' new affidavits still failed to show Armstrong's products in use in Milton Hoffman's "work area." The judge concluded that Milton Hoffman's "work area" was limited to only a "close proximity" surrounding Mr. Hoffman, and did not include the dry docks only 300 to 400 feet away. 8 As a result, the court rejected the Hoffmans' argument that Milton Hoffman was exposed to asbestos from workers passing through the ordnance repair shop or by asbestos dust blowing into the shop from the dry dock. Because Mr. Hoffman did not work in ...
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