Holcomb v. Ga. Pac., LLC
| Decision Date | 06 December 2012 |
| Docket Number | No. 56510.,56510. |
| Citation | 289 P.3d 188,128 Nev. Adv. Op. 56 |
| Parties | Tamara HOLCOMB; Billy Joe Holcomb; Joseph Holcomb; Shelly Holcomb; and Kelly Miller, Appellants, v. GEORGIA PACIFIC, LLC; Kaiser Gypsum Company, Inc.; Kelly–Moore Paint Company, Inc.; and Union Carbide Corporation, Respondents. |
| Court | Nevada Supreme Court |
Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas; Waters, Kraus & Paul and Paul C. Cook, El Segundo, California, for Appellants.
Troy E. Peyton, P.C, and Troy E. Peyton, Las Vegas; Baker & Hostetler, LLP, and Mary Price Birk, Denver, Colorado, for Respondent Union Carbide Corporation.
Lewis & Roca, LLP, and Daniel F. Polsenberg, Las Vegas, for Respondents Georgia Pacific, LLC; Kaiser Gypsum Company, Inc.; and Kelly–Moore Paint Company, Inc.
, C.J.:
In this appeal, we examine the causation tests that courts have implemented when a plaintiff's or decedent's mesothelioma
is alleged to have been caused by exposure to a defendant's asbestos-containing products. We take a balanced approach to find a causation test that is not overly rigorous or too relaxed in order to ensure protection for both manufacturers and consumers. Ultimately, we agree with the majority view and adopt the test set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), as that test is explained in Gregg v. V–J Auto Parts, Inc., 596 Pa. 274, 943 A.2d 216, 225 (2007), for mesothelioma cases. Under the Lohrmann test, the plaintiff is required to prove exposure to the defendant's product “on a regular basis over some extended period of time” and “in proximity to where the plaintiff actually worked,” such that it is probable, or reasonable to infer, that the exposure caused the mesothelioma. Lohrmann, 782 F.2d at 1162–63.
In light of that standard, we then determine whether appellants submitted sufficient causation evidence to raise triable issues of material fact regarding whether, in this case, the decedent's mesothelioma
was probably caused by the respondents' products. In doing so, we conclude that appellants presented sufficient evidence to defeat summary judgment as to respondents Kelly–Moore Paint Company, Inc.; Kaiser Gypsum Company, Inc.; and Georgia Pacific, LLC, but not as to respondent Union Carbide Corporation. Accordingly, we affirm the summary judgment in Union Carbide's favor but reverse the summary judgment as to the remaining respondents.
This case arises out of Randy Holcomb's (Holcomb) contraction of and resulting death from mesothelioma
, a cancer affecting the lining of the lungs, typically caused by exposure to asbestos. Before Holcomb died in 2008, he and his wife, appellant Tamara Holcomb, filed a complaint against joint-compound manufacturers Bondex International, Inc., and related companies; FN1 Kelly–Moore; Kaiser Gypsum; and Georgia Pacific, asbestos supplier Union Carbide,FN2 and various automotive brake product manufacturers, distributers, and sellers. They alleged that Holcomb's mesothelioma was caused by exposure to asbestos contained in those parties' products, which Holcomb used for several years while working as a construction laborer and as an automotive mechanic. The personal injury complaint sounded in negligence and strict products liability, and it included a claim for loss of consortium. After Holcomb died in December 2008, the complaint was amended to include a wrongful death claim by Tamara Holcomb, individually and as the representative of Randy Holcomb's estate, and by their children, appellants Billy Joe Holcomb, Joseph Holcomb, Shelly Holcomb, and Kelly Miller.
Holcomb's use of asbestos-containing products
According to Holcomb's deposition testimony, he worked in the construction industry in Florida from 1969 through 1973, performing sheetrock and drywall work using both dry joint-compound powder packaged in paper bags, which had to be mixed with water prior to use, and pre-mixed joint compound packaged in buckets. According to Holcomb, the application of these joint-compound products created multiple occurrences of dusty, asbestos-laden conditions at each job site. After a year of military service, Holcomb moved to Las Vegas around 1975, where he resumed construction and sheetrock work for several years, first for a motel and later on construction sites. For the construction work in both Florida and Nevada, Holcomb recalled that he used Bondex, Paco, and Paco Quik–Set (manufactured by Kelly–Moore), Kaiser Gypsum, and Georgia Pacific brands of joint compound. He recalled using these brands within the first three years of moving to Las Vegas. Although Holcomb remembered using the identified joint-compound product brands while in Florida and Nevada, he did not recall using any particular product on any particular job or at any particular time, and he could not identify in concrete terms how often his construction duties encompassed sheetrock and drywall work. However, he had specific memories of using all of the named product brands on a regular basis.
Additionally, beginning in 1969 when he moved to Florida and regularly thereafter, Holcomb worked as a brake mechanic in the automotive industry, often performing these jobs on the side, in addition to his other work. The brake jobs allegedly required scuffing, beveling, and filing the edges of asbestos-containing brakes, creating dusty conditions in which he breathed. Holcomb asserted that these repeated exposures to the brake and joint-compound products caused his mesothelioma
later in life.
Causation evidence
Appellants presented testimony and a letter from pathologist Dr. Ronald Gordon, Ph.D., in which he concluded after examining Holcomb's lung tissue that Holcomb's mesothelioma
was attributable to asbestos. Dr. Gordon found “significant asbestos fiber burden” present in the lung tissue that “was the causative factor in the development of his mesothelioma.”
[1]
In addition, appellants submitted the report and deposition testimony of Dr. Edwin Holstein, M.D., M.S., who provided expert opinion regarding the medical cause of Holcomb's mesothelioma.FN3 Dr. Holstein's report explained that Holcomb's work with asbestos-containing joint compounds and brake components caused asbestos to be released into the air, which Holcomb then breathed in. Dr. Holstein stated that Holcomb's resulting exposures to joint-compound and automotive-friction products acted cumulatively to cause his mesothelioma. He opined that “each and every exposure to asbestos increases the total exposure and that the progressively increasing cumulative exposure increases the risk of developing an asbestos-related disease, including mesothelioma.” He further opined that “the best scientific evidence is that all significant exposures contribute to the causation of a subsequent mesothelioma.” Dr. Holstein explained that “joint compounds and brakes, when worked with in the ordinary and customary ways, regularly gave rise to significant amounts of asbestos dust in the air,” and that the types of asbestos fibers used in joint compound and brakes cause mesothelioma. Dr. Holstein summarized his causation opinions by stating that Holcomb's mesothelioma was caused by exposure to asbestos in joint-compound and automotive-friction products.
Procedural posture
The joint-compound and automotive-brake defendants separately moved for summary judgment on the ground that Holcomb's deposition testimony was too vague to raise triable issues of fact regarding his threshold exposure to any asbestos contained in their products. The district court granted summary judgment to the joint-compound defendants, concluding that appellants had failed to submit sufficient evidence of exposure to allow a jury to find that those defendants' products were substantial factors in causing Holcomb's mesothelioma
. The district court pointed out that Holcomb could not definitively describe when or how regularly and frequently he used each defendant's products, did not identify products but only manufacturers, and could not identify whether the products that he used contained asbestos. The court largely denied summary judgment to the automotive-brake defendants, concluding that appellants had submitted sufficient evidence of exposure to asbestos in the brake products to take the case to a jury.
In resolving the summary judgment motions, the district court considered caselaw from a host of jurisdictions, including a Fourth Circuit Court of Appeals opinion, Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986)
, and a California Supreme Court decision, Rutherford v. Owens–Illinois, Inc., 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (1997). Ultimately, with regard to the joint-compound defendants, the district court determined that under any standard, Holcomb had not provided enough information regarding his use of asbestos-containing joint compound to proceed with the claims. The district court subsequently certified its orders granting summary judgment to the joint-compound defendants as final, pursuant to NRCP 54(b), and appellants appealed.FN4
[2]
[3]
[4]
This court reviews a district court's order granting summary judgment de novo, without deference to the findings of the lower court. Francis v. Wynn Las Vegas, 127 Nev. ––––, ––––, 262 P.3d 705, 714 (2011). Summary judgment is proper only when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.” NRCP 56(c). “A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving Party.” Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005). When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. at 729, 121 P.3d at 1031.
Here, appellants argue that ...
To continue reading
Request your trial
-
Fowler v. Akzo Nobel Chems., Inc.
...1, 4 (1986) (recognizing that mesothelioma "appears to develop with only minimal exposure to asbestos"); Holcomb v. Ga. Pac., LLC, 128 Nev. 614, 289 P.3d 188, 196 n.9 (2012) ("[M]esothelioma is a signature asbestos disease that can be contracted from low doses of asbestos exposure."); Gregg......
-
Juni v. A.O. Smith Water Prods. (In re N.Y.C. Awbestos Litig.)
...insufficient absent evidence of the frequency, proximity, and regularity of exposure to a defendant's product. (Holcomb v. Georgia Pacific, LLC, ––– Nev. ––––, 289 P.3d 188 [2012] ).An intermediate appellate court in Georgia found that an expert's opinion on specific causation was insuffici......
-
Rost v. Ford Motor Co.
...the majority of state and federal courts have adopted the "frequency, regularity, and proximity" test.12 See Holcomb v. Georgia Pacific, LLC, 289 P.3d 188, 195 (Nev. 2012) ("The majority of the federal circuits and state courts addressing this question have chosen to apply" the "frequency, ......
-
Leavitt v. Siems
...to object to his testimony on this basis in the district court results in waiver of this issue. See Holcomb v. Ga. Pac., L.L.C., 128 Nev. ––––, –––– n. 3, 289 P.3d 188, 191 n. 3 (2012) (recognizing that this court will not consider an argument raised for the first time on appeal). 7. Having......