In re North Dakota Personal Injury Asbestos Lit.

• Decision Date: 17 May 1990
• Docket Number: A1-89-145 and A1-89-146.,Civ. No. A1-89-098 to A1-89-138
• Citation: 737 F. Supp. 1087
• Parties: In re NORTH DAKOTA PERSONAL INJURY ASBESTOS LITIGATION NO. 1.
• Court: U.S. District Court — District of South Dakota

737 F. Supp. 1087

In re NORTH DAKOTA PERSONAL INJURY ASBESTOS LITIGATION NO. 1¹.

Civ. Nos. A1-89-098 to A1-89-138, A1-89-145 and A1-89-146.

United States District Court, D. North Dakota, Southwestern Division.

May 17, 1990.

David C. Thompson, Fargo, N.D., for plaintiff.

Jacqueline A. Gaddie, Arndt & Benton, P.A., Minneapolis, Minn., for Eagle-Picher.

Ronald H. McLean, Serkland, Lundberg, Erickson, Marcil & McLean, Ltd., Fargo, N.D., and Ralph Walker, Davis, Hockenberg, Wine, Brown, Koehn & Shors, Des Moines, Iowa, for Armstrong World Industries, Flexitallic Gasket Co., GAF Corporation, A.P. Green Refractories, Keene Corp., National Gypsum, Turner Asbestos Fibres, Turner & Newall PLC, U.S. Gypsum and Union Carbide Corp.

Douglas R. Herman, Vogel, Brantner, Kelly, Knutson, Weir & Bye, Ltd., Fargo, N.D., for Grant Wilson, Inc.

Richard N. Jeffries, Jeffries, Olson & Flom, P.A., Moorhead, Minn., for SEPCO Corp.

Susan M. Hansen, Robert D. Brownson, Stich, Angell, Kreidler & Muth, P.A., Minneapolis, Minn., for Asbestos Products Mfg., Asbestos Corp., Spraycraft and H & A Const. Corp.

Daniel Hovland, Steven A. Storslee, Fleck, Mather, Strutz & Mayer, Ltd., Bismarck, N.D., for W.R. Grace & Co.

Gerald Haga, Degnan, McElroy, Lamb, Camrud, Maddock & Olson, Ltd., Grand Forks, N.D., for Crane Packing Co.

Patrick J. Mastel, Morley & Morley, Ltd., Grand Forks, N.D., for Garlock, Inc.

Jon P. Parrington, Joel Muscoplat, Pustorino, Pederson, Tilton & Parrington, Minneapolis, Minn., for MacArthur Co.

Robert S. Cragg, Cragg & Fobbe, Hopkins, Minn., for A.P.I., Inc.

John P. Borger, Martin N. Burke, Faegre & Benson, Minneapolis, Minn., for Owens-Corning Fiberglas, CertainTeed Corp.

A. William Lucas, Lucas & Smith, Bismarck, N.D., for Building Sprinkler Co., Inc.

Duane A. Lillehaug, Colleen J. Saande, Dosland, Nordhougen, Lillehaug, Johnson & Saande, P.A., Moorhead, Minn., for U.S. Mineral Products Co.

Michael D. McNair, Lamb, McNair, Larson & Carlson, Ltd., Fargo, N.D., for Asbestos Corp., Atlas Turner, Inc.

Eugene D. Buckley, Collins, Buckley, Sauntry & Haugh, St. Paul, Minn., for Owens-Illinois, Inc., Fibreboard Corp. and Pittsburgh Corning.

Charles H. Becker, Meagher & Geer, Minneapolis, Minn., for A.H. Bennett Co. and S.O.S. Products Co.

B. Timothy Durick, Pearce & Durick, Bismarck, N.D., for Rutland Fire & Clay Co.

Jody D. Klask, Gary D. Sharp, Cheatham & Acker, Detroit, Mich., for H.K. Porter Co., Inc. and Southern Textile Corp.

Wayne A. Hergott, Moss & Barnett, Minneapolis, Minn., for Flintkote Co.

George W. Soule, Cynthia J. Atsatt, Bowman & Brooke, Minneapolis, Minn., for Hercules Chemical Co., Inc.

Michael G. Fiergola, Zuger, Kirmis, Bolinske & Smith, Bismarck, N.D., for Celotex Corp. and Carey Canada, Inc.

David Booth Beers, Elizabeth Runyon Geise, Shea & Gardner, Washington, D.C., for Cassiar Min.

Stephen W. Plambeck, Nilles, Hansen & Davies, Ltd., Fargo, N.D., for Empire Ace Insulation Mfg.

MEMORANDUM AND ORDER

VAN SICKLE, District Judge.

INTRODUCTION

Defendant Cassiar Mining Corporation filed a motion with this Court on January 4, 1990. In its motion, Cassiar requested the Court, "pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the complaints against it for lack of personal jurisdiction." On February 2, 1990 this Court ordered filed Master Pretrial Order No. 1, consolidating cases A1-89-098 through A1-89-138, A1-89-145, and A1-89-146 into a master docket. After requesting and receiving additional time in which to reply to Cassiar's motion, plaintiffs filed a memorandum in opposition to dismissal for lack of personal jurisdiction on February 27, 1990. Cassiar filed an additional reply memorandum in support of its motion on April 18, 1990.

This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1441 (1990 Supp.), which provides for removal from state court for actions against a foreign state or political subdivision. 28 U.S.C. § 1441(d) affects all parties, and allows removal even if some of the defendants are of the same residence as the plaintiffs. Cassiar has claimed this Court lacks jurisdiction over its person, not that plaintiffs failed to serve it with notice of this litigation. The issue of personal jurisdiction has already arisen and been ruled on in this case. See Adolf v. A.P.I., Inc., 726 F.Supp. 764 (D.N.D.1989).² Plaintiffs have raised a new basis for asserting personal jurisdiction over certain foreign defendants; therefore a fresh look at the problem is necessary.

FACTS

Defendant Cassiar is a Canadian corporation. Cassiar's principal place of business is in Vancouver, British Columbia, Canada. Cassiar's sole interest since 1953 has been the mining of raw asbestos fibre in Canada. All the asbestos Cassiar mined was sold F.O.B. at shipping points in Canada. Cassiar claims that it never shipped, sold, or delivered asbestos to any person or entity in North Dakota.

Plaintiffs do not claim that Cassiar's allegations are untrue. Plaintiffs do assert, however, that Cassiar supplied vast amounts of raw asbestos fibres to various manufacturers of finished asbestos products, including Fibreboard Corporation; H.K. Porter Co., Inc.; Johns-Manville Sales Corp.; and Raybestos-Manhattan (Raymark). Plaintiffs assert that they or their decedents were exposed to or used these manufacturers', among others, finished asbestos products. Plaintiffs also claim that Cassiar was a participant in a civil conspiracy to deceive the general public about the health risks associated with asbestos.

Accompanying plaintiffs' memorandum were several hundred pages of documents supporting their contentions. These were organized as Appendices "A" through "L." While the documents are too numerous to list in detail, a brief summary of what this Court's examination found will explain the basis for the jurisdictional ruling.

Appendix "A" contained a work history of every plaintiff. This work history included all dates known where a given plaintiff worked with asbestos, and the nature of the jobs performed. The work history also noted the specific asbestos products with which that plaintiff remembers having worked.

Appendix "B" was made up of copies of the answers of co-defendants Raymark, Fibreboard Corporation, and H.K. Porter to plaintiffs' interrogatories. Pertinent factual information contained in these includes products these defendants manufactured and lists of suppliers from whom they purchased raw asbestos. The source of asbestos includes defendant Cassiar. The manufacturers also listed those asbestos products they sold to North Dakota businesses and their activities in North Dakota.

Appendix "C" consisted of a copy of the minutes of the Asbestos Textile Institute (A.T.I.) for a meeting held June 4 to 7, 1956. Among the members listed attending were Cassiar, Johns-Manville Corp. of Canada, Johns-Manville Corp., Raybestos-Manhattan, and Southern Asbestos Co. (later H.K. Porter). At this meeting the Air Hygiene Committee discussed links between cancer, asbestosis, and asbestos fibres and dust. The Air Hygiene Committee discussed a copy of a report it had commissioned from the Industrial Hygiene Foundation regarding links between asbestos and cancer.

Appendix "D" is also a copy of A.T.I. minutes, these dated June 12, 1970. Cassiar is again in attendance, as are Canadian Johns-Manville; Lake Asbestos of Quebec, Ltd. (LAQ); Garlock, Inc.; H.K. Porter; and Raybestos-Manhattan. A company officer from Cassiar gave a talk about a new asbestos mine, which concluded with a film showing how its asbestos was shipped from Vancouver to "25 countries on five continents." The A.T.I. discussed government programs designed to punish those who misrepresent the safety of goods manufactured and sold, new safety requirements concerning asbestos, and new booklets the A.T.I. was considering publishing about asbestos.

Appendix "E" is A.T.I. minutes from October 8, 1971. Cassiar is again in attendance. Publication of A.T.I. booklets about asbestos was discussed, as were potential problems with new O.S.H.A. safety requirements.

Appendix "F" is a copy of an order of this Court holding that circumstantial evidence can be used to show conspiracy, and that conspiracy exists as a cause of action in North Dakota. Appendix "G" is a copy of an order from the British Columbia Court of Appeals allowing a conspiracy cause of action. Appendix "H" is a copy of a 1988 opinion by Judge Devitt denying a motion by an asbestos defendant for summary judgment under a theory of conspiracy under Minnesota law. Appendices "I," "J," and "K" are also federal cases refusing to grant defense motions for summary judgment on the issue of civil conspiracy.

Appendix "L" contains portions of Barry I. Castleman's book, Asbestos: Medical and Legal Aspects (2d ed. 1986). In his book, Castleman cites certain portions of A.T.I. minutes that he claims show an agreement on the part of A.T.I. members to conceal the true risks of asbestos from the general public. The A.T.I. meeting minutes cited include those submitted by plaintiffs in appendices "C," "D," and "E."

Accompanying its response brief, defendant Cassiar filed several appendices of its own. These included two North Dakota district court cases dismissing out-of-state asbestos mines for want of personal jurisdiction, two District of Columbia Superior Court cases doing the same, and copies of the minutes of two separate A.T.I. meetings. Also submitted was an affidavit of David J. Elgee, corporate counsel of Cassiar. Elgee states that while Cassiar was a member of the A.T.I., it denies involvement in a conspiracy to suppress the potential hazards of asbestos from the general public.

The material submitted by plaintiffs in their appendices "A" and "B" are almost identical to that submitted by co-defendant and asbestos mine operator LAQ. See Adolf v. A.P.I., Inc., 726 F.Supp. 764, 767-68 (D.N.D.1989). Were this all plaintiffs submitted, this Court would have dismissed against Cassiar with little...