Martin v. Cincinnati Gas and Elec. Co.

• Decision Date: 27 January 2009
• Docket Number: No. 07-6385.,07-6385.
• Citation: 561 F.3d 439
• Parties: David MARTIN, Executor of the Estate of Dennis B. Martin, Plaintiff-Appellant, v. CINCINNATI GAS AND ELECTRIC COMPANY, General Motors Corporation, General Electric Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

561 F.3d 439

David MARTIN, Executor of the Estate of Dennis B. Martin, Plaintiff-Appellant, v. CINCINNATI GAS AND ELECTRIC COMPANY, General Motors Corporation, General Electric Company, Defendants-Appellees.

No. 07-6385.

United States Court of Appeals, Sixth Circuit.

Argued: October 29, 2008.

Decided and Filed: January 27, 2009.^*

ARGUED:

Kenneth L. Sales, Sales, Tillman, Walbaum, Catlett & Satterley, Louisville, Kentucky, for Appellant. Gary J. Sergent, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, James K. Vines, King & Spalding, Washington, D.C., Scott T. Dickens, Fultz, Maddox, Hovious & Dickens, Louisville, Kentucky, for Appellees.

ON BRIEF:

Kenneth L. Sales, Paul J. Kelley, Sales, Tillman, Walbaum, Catlett & Satterley, Louisville, Kentucky, for Appellant. Gary J. Sergent, Michael J. O'Hara, O'Hara, Ruberg, Taylor, Sloan & Sergent, Covington, Kentucky, James K. Vines, King & Spalding, Washington, D.C., Scott T. Dickens, Fultz, Maddox, Hovious & Dickens, Louisville, Kentucky, Eric M. Cavanaugh, Duke Energy Shared Services, Inc., Plainfield, Indiana, for Appellees. Mark A. Behrens, Shook, Hardy & Bacon, Washington, D.C., for Amicus Curiae.

Before: SILER and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.^**

OPINION

McKEAGUE, Circuit Judge.

Dennis Martin ("Mr.Martin") died from malignant mesothelioma on March 22 2002. His son, David Martin ("Plaintiff"), serving as executor of his father's estate, filed a complaint based on asbestos exposure in Kentucky state court against nine defendants. Defendants removed the case to the Eastern District of Kentucky based on diversity.

After various defendants settled or were dismissed from the suit, claims remained against Cincinnati Gas & Electric Company ("CG & E"), General Electric ("GE"), and General Motors ("GM"). The claims against CG & E and GE were based on asbestos that Mr. Martin's father, Vernon Martin, brought home on his work clothes while working for CG & E. The claim against GM was based on Mr. Martin's alleged exposure to asbestos while working as a ship mechanic from 1979 to 1984. The district court found that Plaintiff did not raise an issue of material fact regarding causation in his claim against GM, and so granted summary judgment to GM. The district court also granted summary judgment for CG & E and GE because the injury to Mr. Martin was not foreseeable at the time of exposure. Plaintiff appeals both orders. For the reasons given below, we affirm the district court's orders.

I. BACKGROUND

Mr. Martin's father worked for CG & E for thirty-eight years. He began working for CG & E in 1951 as a laborer. Within a year, he was promoted to mechanic. His work at CG & E during this period involved underground power lines. The work brought him into contact with fireproofing that contained asbestos. In the 1950's, he worked with fireproofing every month or two. One power line in particular, the "66," was treated only with asbestos. Mr. Martin's father worked on the 66 "[q]uite a few" times. In 1963, he was promoted to equipment operator, where he operated heavy excavating machinery. In 1973, he was promoted to senior mechanic in underground utilities. The district court found that his work with asbestos lasted from 1951 to 1963. Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 WL 2682064, at *1-2 (E.D.Ky. Sept.5, 2007). Plaintiff does not challenge that finding on appeal. As Mr. Martin was born in 1952, the relevant asbestos exposure occurred between 1952 and 1963.

Internal memoranda indicate that CG & E used asbestos products. Several documents from CG & E also indicate that GE provided asbestos products to CG & E. A memo from 1948 notes an order from GE for "asbestos gaskets." Another order indicates that CG & E purchased pipe insulation from GE. Several other memos indicate that GE provided most of the materials for CG & E pipes.

CG & E provided lockers and showers for their employees. After work, Mr. Martin's father would sometimes shower and change at CG & E. Other times, he would go directly home. When he got home, he would most often change and leave his work clothes in the basement laundry room. Occasionally, he would do yard work in his work clothes. Mr. Martin's father recalls Mr. Martin sometimes sitting on his lap or hugging him while he was still in his work clothes.

Mr. Martin's mother, Mary Helen, did the laundry. Mr. Martin and his cousin, Steve Boesing ("Mr.Boesing"), would often play in the basement. The laundry room, however, was in a separate room in the basement, "way over on the far side" from where the children played. This proximity to his father's work clothes is the basis for Mr. Martin's first potential exposure to asbestos.

After serving in the Navy, Mr. Martin held a variety of jobs in the Kentucky area. Many of these jobs involved ships others involved chemical manufacture. The record does not include testimony regarding asbestos exposure during Mr. Martin's time at these other positions. Mr. Boesing frequently worked with Mr. Martin. At many of these jobs, Mr. Boesing remembered no exposure to anything that might have been asbestos. This was not the case at Valley Line Company, where Mr. Martin was employed from 1979 to 1984 as a welder and a mechanic. Mr. Boesing also worked at Valley Line, and he recalled asbestos in a variety of forms.

Mr. Boesing recalled working with products made with asbestos during periodic engine overhauls. Eighty-five percent of the engines that Mr. Martin and Mr. Boesing worked on were manufactured by EMD, a GM subsidiary. During the overhauls, Valley Line employees would sometimes have to remove insulation from the exhaust systems. Mr. Boesing believed this insulation was provided by the shipyard when the boats were built. There were two general types of insulation: a silver mesh that could simply be unhooked from the exhaust, and a white insulation with a hard shell. With the latter type, Mr. Martin would have to cut through the hard shell in order to reach the engine. The need to cut through the shell would only occur on one out of four engine overhauls, and it would often involve only enough to remove a bolt.

During the course of work at Valley Line, Mr. Boesing and Mr. Martin also frequently used gaskets. There were two types of gaskets: precut and custom. Precut gaskets were made by EMD. When Valley Line employees made custom gaskets, they did so with materials provided by a different company, Durabla. The new gaskets used during engine overhauls were the precut EMD gaskets. They were installed as provided; at no point did Valley Line employees cut into the new EMD gaskets. Removing old gaskets created a visible white dust. Mr. Boesing did not know if the gaskets replaced during overhauls were made by GM.

Mr. Martin and Mr. Boesing also replaced power packs on ship engines. Part of this work involved removing old gaskets, which created dust. There were also fireproofing blankets, made by Triangle Insulation. Mr. Boesing believed the blankets contained asbestos. He noted that employees would cut portions of these blankets to use when welding in sensitive areas. Additionally, the ship engine rooms had asbestos pegboard walls, but the walls were rarely moved and so produced little dust. The hot water lines also had white insulation. Mr. Martin's work with these materials at Valley Line constitutes his second potential exposure to asbestos.

After Plaintiff filed his complaint and the case was removed to the Eastern District of Kentucky, motions for summary judgment ensued. The district court granted GM's motion because "there is no evidence that GM manufactured or supplied" the relevant insulation. Martin v. Cincinnati Gas & Elec. Co., No. 02-201-DLB, slip op. at 14 (E.D.Ky. May 25, 2006). The district court granted summary judgment for CG & E and GE because neither CG & E nor GE had a legal duty to Mr. Martin. Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 WL 2682064, at *9 (E.D.Ky. Sept.5, 2007). This appeal followed.

II. ANALYSIS

A. Standard of Review

As this is a diversity action, Kentucky substantive law applies. Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir. 2003). Procedurally, federal standards for summary judgment govern. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir.2001).

This court reviews a district court's grant of summary judgment de novo. Nichols v. Moore, 477 F.3d 396, 398 (6th Cir.2007). At the summary judgment stage, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Jones v. Potter, 488 F.3d 397, 403 (6th Cir.2007). In order to survive summary judgment, the nonmovant must meet the movant's motion with "specific facts showing that there is a genuine issue for trial." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A "scintilla of evidence" will not suffice. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. GM Products Were Not a Substantial Factor in Causing Mr. Martin's Mesothelioma

"To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff's damages." Lee v. Farmer's Rural Elec. Coop. Corp., 245 S.W.3d 209, 211-12 (Ky.Ct.App. 2007). Kentucky utilizes the Restatement (Second) Torts § 431 test for causation: the plaintiff must show that the defendant's "conduct is a substantial factor in bringing about the harm." Bailey v. N. Am. Refractories Co., 95 S.W.3d 868, 871 (Ky.Ct.App.2001).

Under Kentucky law, causation is generally a question of fact for the jury. Id. at 872. However, causation should not go to the jury unless the inference of causation is reasonable: it must "indicate the probable, as distinguished from a possible cause." Id. at 873 (quoting Briner v. Gen. Motors Corp., 461 S.W.2d 99, 101 (Ky.Ct.A...