Jones v. Owens-Corning Fiberglas Corp. and Amchem Products, Inc.
| Decision Date | 03 November 1995 |
| Docket Number | 94-1862,Nos. 94-1861,OWENS-CORNING,s. 94-1861 |
| Parties | Prod.Liab.Rep. (CCH) P 14,400 Vera JONES, Executrix of the Estate of James Jones, Plaintiff-Appellee, and James Jones, Plaintiff, v.FIBERGLAS CORPORATION, a Delaware Corporation, Defendant-Appellant, v. AMCHEM PRODUCTS, INCORPORATED; Armstrong World Industries, Incorporated, formerly known as Armstrong Cork Company; Carey Canada, Incorporated; The Celotex Corporation, Individually and as successor-in-interest of Philip Carey Manufacturing Company, Philip Carey Corporation, Panacon Corporation, Glen Alden Corporation, Rapid American Corporation, Briggs Manufacturing Company, and Smith and Kanzler, a Delaware Corporation; Eagle-Picher Industries, Incorporated, an Ohio Corporation; Fibreboard Corporation, Pabco Industrial Products Division, a Delaware Corporation; Flexitallic Gasket Company, Incorporated, a Connecticut Corporation; Gaf Corporation, a Delaware Corporation; Garlock, Incorporated, Precision Seal Division, an Ohio Corporation; A.P. Greene Refractories Company; Keene Corporation, Individually and as successor-in-interest to Keene Building Products Corporation, Keene Insulation Products Corporation, Ehret Magnesia Manufacturing Company, Baldwin-Ehret-Hill, Incorporated, Baldwin-Hill Company, and Mundet Cork Corporation, a New York Corporation; National Gypsum Company, a Delaware Corporation; Owens-Illinois, Incorporated, an Ohio Corporation; Pittsburgh-Corning Corporation, Individually and as successor-in-interest to Union Asbestos and Rubber Company (UNARCO), a Pennsylvania Corporation; H.K. Porter Company, Incorporated, Individually and as successor-in-interest to Southern Asbestos, Carolina Asbestos, Thermoid and Tullman-McCluskey, a Delaware Corporation; Turner & Newall, P.L.C., Individually and as alter ego of Keasby and Mattison; General Refractories Company, Grefco; M.H. Dietrick, Defendants. Samuel H. CULVERHOUSE; Mattie Culverhouse, Plaintiffs-Appellees, v.FIBERGLAS CORPORATION, a Delaware Corporation, Defendant-Appellant, and Amchem Products, Incor |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Moffatt Grier McDonald, Haynsworth, Marion, McKay & Guerard, L.L.P., Greenville, South Carolina, for Appellant. E. Spencer Parris, Michaels, Jones, Martin & Parris Law Offices, P.A., Raleigh, North Carolina, for Appellees. ON BRIEF: James Boyce Pressly, Jr., Haynsworth, Marion, McKay & Guerard, L.L.P., Greenville, South Carolina, for Appellant. Michael J. Brickman, Ness, Motley, Loadholt, Richardson & Poole, Charleston, South Carolina, for Appellees.
Before WILKINSON and LUTTIG, Circuit Judges, and SHEDD, United States District Judge for the District of South Carolina, sitting by designation.
Affirmed in part, reversed in part, and remanded for a new trial by published opinion. Judge SHEDD wrote the majority opinion, in which Judge LUTTIG joined. Judge WILKINSON wrote a dissenting opinion.
Owens-Corning Fiberglas Corporation ("OCF") appeals the district court's entry of partial summary judgment against it on two issues. For the reasons set forth below, we affirm in part, reverse in part, and remand for a new trial.
For over two decades beginning in 1952, James Jones and Samuel Culverhouse worked at the Babcock & Wilcox ("B & W") plant in Wilmington, North Carolina. The B & W plant manufactured industrial boilers for use in large commercial facilities, and these boilers were insulated with asbestos during the 1950s, 1960s, and 1970s. Both Jones and Culverhouse, who were long-term cigarette smokers, were exposed to asbestos on a daily basis at the B & W plant, and they eventually developed asbestosis and lung cancer.
In 1990, Jones and his wife Vera, and Culverhouse and his wife Mattie, filed separate product liability lawsuits against various asbestos manufacturers, including OCF. 1 During the pretrial phase of these lawsuits all of the asbestos manufacturers except for OCF were dismissed because of settlement. The district court eventually consolidated these cases and, on motion of Jones and Culverhouse, granted partial summary judgment against OCF on two issues: (1) whether Jones and Culverhouse had been sufficiently exposed to OCF's asbestos product for purposes of rendering OCF liable and (2) whether Jones and Culverhouse could be held contributorily negligent because of their cigarette smoking. Thereafter, following a five-day trial the jury returned verdicts against OCF of $1,323,509.42 in favor of Jones and $1,333,473.65 in favor of Culverhouse. The district court subsequently denied OCF's post-trial motions and this appeal followed.
Initially, we will address OCF's argument that the district court erred by entering partial summary judgment in favor of Jones and Culverhouse on the issue of exposure to OCF's asbestos product. This Court has previously held that the plaintiff in a personal injury asbestos case "must prove more than a casual or minimum contact with the product" containing asbestos in order to hold the manufacturer of that product liable. Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir.1986). Instead, the plaintiff must present "evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked." Id. at 1162-63. 2
A.
In moving for summary judgment on this issue, Jones and Culverhouse submitted to the district court the affidavits of Lowell Clark and Oliver Woodcock, both of whom testified inter alia that (1) they worked with Jones and Culverhouse at the B & W plant for over two decades beginning in 1952; (2) during that time, they were all exposed to, and inhaled, asbestos dust on a daily basis; and (3) they worked with Jones and Culverhouse with and around Kaylo pipe-covering and block, which are OCF asbestos products, on a regular basis from 1952 to the 1970s. Jones and Culverhouse also submitted their own deposition testimony in which they testified inter alia that they were exposed to asbestos at the B & W plant and that was their only asbestos exposure. Jones and Culverhouse had previously submitted records from the B & W plant which showed that Kaylo pipe-covering and block were used there during the relevant period of time. Believing that no factual response to this evidence was necessary because a factual dispute was self-evident, see infra Part II-B, OCF did not submit any factual material in opposition to the motion. Presented with this record, the district court determined that Jones and Culverhouse were entitled to summary judgment.
We conclude that the district court properly entered summary judgment against OCF on this issue. Rule 56(c) of the Federal Rules of Civil Procedure requires the district court to render summary judgment "if 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." The undisputed record presented to the district court--as summarized above--consists of direct evidence that establishes that Jones and Culverhouse were exposed to asbestos dust on a daily basis, and more specifically to Kaylo "on a regular basis," for approximately 20 years. This evidence clearly shows "more than a casual or minimum contact" by Jones and Culverhouse with Kaylo. The district court therefore properly ruled in favor of Jones and Culverhouse on this issue.
B.
We reject OCF's arguments to the contrary. OCF primarily argues, as it did below that because neither Jones nor Culverhouse personally identified Kaylo as an asbestos product to which they were exposed, or OCF as an asbestos manufacturer whose products were in the plant, a factual dispute concerning their exposure to Kaylo exists. In making this argument, OCF cites this Court's opinion in Roehling v. National Gypsum Company Gold Bond Building...
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