Migues v. Fibreboard Corp., No. 80-1994

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore BROWN, GOLDBERG and AINSWORTH; GOLDBERG
PartiesAlberta MIGUES, Plaintiff-Appellee, v. FIBREBOARD CORP., et al., Defendants, Nicolet Industries, Defendant-Appellant. . Unit A *
Decision Date07 December 1981
Docket NumberNo. 80-1994

Page 1182

662 F.2d 1182
Alberta MIGUES, Plaintiff-Appellee,
v.
FIBREBOARD CORP., et al., Defendants,
Nicolet Industries, Defendant-Appellant.
No. 80-1994.
United States Court of Appeals,
Fifth Circuit.
Unit A *
Dec. 7, 1981.
Addendum

Page 1183

Dale Dowell, Beaumont, Tex., Jack E. Urquhart, Houston, Tex., for defendant-appellant.

Walter Umphrey, Stephen M. Rienstra, Port Arthur, Tex., for plaintiff-appellee.

O. J. Weber, Beaumont, Tex., amicus curiae, for Keene Corp.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, GOLDBERG and AINSWORTH, Circuit Judges.

GOLDBERG, Circuit Judge:

In Borel v. Fibreboard Paper Products Corporation, 493 F.2d 1076 (5th Cir. 1973) this Court provided an extensive analysis of Texas product liability law as it is to be applied in suits brought against manufacturers of asbestos products. Now we are called upon to determine whether Borel can serve as precedential authority for the proposition that all asbestos products are unreasonably dangerous as a matter of law. We conclude that it cannot.

I. BACKGROUND

Mr. Russel Migues worked as an insulator at Texaco, Incorporated from 1944 until 1977. According to the testimony of his co-workers, Mr. Migues' job as an insulator involved cutting asbestos insulating products. The cutting process produced asbestos dust which Mr. Migues and the other insulators inhaled. In September 1977, a medical biopsy revealed that Mr. Migues was suffering from mesothelioma, a fatal form of lung cancer. According to plaintiff's expert medical witnesses, mesothelioma is caused by asbestos inhalation. Mr. Migues died soon after the 1977 diagnosis.

Mrs. Migues brought suit in the federal district court for the Eastern District of Texas 1 against fourteen asbestos manufacturers, 2 charging that the asbestos products

Page 1184

manufactured by defendants were unreasonably dangerous and that exposure to these products caused her husband's death.

Prior to trial, Judge Parker granted plaintiff's Motion for Partial Summary Judgment on the issue of whether asbestos-containing products were unreasonably dangerous to users or consumers under Texas products liability law. According to Judge Parker, the only issues for the jury to decide were: (1) whether defendants manufactured asbestos, (2) if so, whether the decedent Russel Migues was exposed to any individual defendant's products, (3) whether such exposure, if any, was a producing cause of his death, (4) whether Mr. Migues contracted mesothelioma, and finally, (5) the amount of plaintiff's damages, if any.

Following the District Court's order, thirteen defendants settled with plaintiff prior to trial for a total amount of $400,000. The case then went to trial against the remaining defendant, Nicolet Industries, Inc. (hereinafter "Nicolet"). The jury found in favor of Mrs. Migues, and awarded her damages of three million dollars. In response to specific interrogatories by the Court, the jury found that Mr. Migues had been exposed to the thirteen settling defendants' asbestos products in addition to those of Nicolet, and that all of these products were producing causes of Mr. Migues' death.

Defendant Nicolet's Motions for Directed Verdict and for Judgment Notwithstanding the Verdict were denied. Judge Parker did, however, reduce Mrs. Migues' award, via remittituer, to $1.5 Million. 3 He then credited Nicolet with the $400,000 paid in settlement by the other defendants, and entered judgment, 493 F.Supp. 61, against Nicolet for the remainder.

Defendant Nicolet brought this appeal, alleging several reasons for reversal. Appellant first suggests that this Court must reverse the District Court's denial of Nicolet's Motions for Directed Verdict and for Judgment Notwithstanding the Verdict. Nicolet argues that even if we assume, as did the District Court, that asbestos is unreasonably dangerous as a matter of law, plaintiff did not meet her burden of proving that the products of this particular defendant, Nicolet, were a producing cause of her husband's death. Alternatively, Nicolet asks that we remand this case for a new trial, citing several alleged errors made by the District Court in the proceedings below. Foremost among these arguments is Nicolet's claim that the District Court's order granting partial summary judgment to plaintiff on the issue of the unreasonably dangerous nature of asbestos products violates Nicolet's rights to due process and to a jury trial under the Fourteenth and the Seventh Amendments. Finally, Nicolet claims that the District Court's method of determining Nicolet's share of the final judgment awarded to plaintiff was erroneous. Instead of crediting Nicolet with the amount paid in settlement by the other thirteen defendants, Nicolet argues, the District Court should have held Nicolet liable for only its proportional share-one fourteenth-of the $1.5 Million judgment.

II. DEFENDANT'S MOTIONS FOR DIRECTED VERDICT AND FOR JNOV

Appellant's first contention-that the District Court erred in refusing to grant Nicolet's Motions for Directed Verdict and for JNOV-is without merit. Nicolet argues that there was no substantial evidence that the decedent Mr. Migues was exposed to Nicolet products containing asbestos, and no evidence at all that Mr. Migues' exposure, if any, to Nicolet products was a producing cause of the disease which led to his death. However, examining the evidence in the light most favorable to plaintiff, Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969) (en banc), we find that the District Court was indeed justified in submitting

Page 1185

the issues of exposure and causation to the jury.

Nicolet's answers to interrogatories-admitted into evidence at trial-support the conclusion that Nicolet is a manufacturer of asbestos-containing insulation products. Three of his former co-workers testified that the decedent had worked with defendant's asbestos products while employed as an insulator at Texaco, and that the job of cutting insulation pieces to fit pipes produced dust which the insulators, including the decedent, inhaled. Defendant introduced no evidence contradicting the testimony of plaintiff's witnesses. Under these circumstances, we can certainly say that "reasonable and fairminded men in the exercise of impartial judgment," Boeing Co. v. Shipman, supra, could reach the conclusion that Mr. Migues was exposed to asbestos products manufactured by Nicolet.

Moreover, with regard to causation, plaintiff's expert medical witnesses testified that Mr. Migues had died of mesothelioma, that the only known cause of mesothelioma is inhalation of asbestos fibers, and that even a very limited amount of asbestos fiber can produce the disease within a short time. 4 Again, Nicolet offered no evidence to contradict the testimony of plaintiff's experts.

In sum, plaintiff introduced uncontraverted evidence that Mr. Migues died of mesothelioma, that asbestos fibers were present in his lungs at the time of death, that asbestos inhalation is the only known cause of mesothelioma, that Nicolet produced insulation products containing asbestos, and that Mr. Migues worked with Nicolet asbestos products during the course of his employment as an insulator. We find that there was more than sufficient circumstantial evidence to support the jury's conclusion that Nicolet's products were a producing cause of Mr. Migues' death. Borel v. Fibreboard, 493 F.2d at 1094. Accordingly, the District Court did not err when it denied defendant's Motions for Directed Verdict and for JNOV.

III. COLLATERAL ESTOPPEL

A great deal of sound and fury has been generated over the question of whether Nicolet could be precluded from litigating the unreasonably dangerous nature of its asbestos-containing products based on the collateral estoppel effect of a case-Borel v. Fibreboard, supra-to which Nicolet was not a party. 5 We decline to reach this question for the simple reason that it is not presented in the case before us. The District Court's order granting plaintiff's Motion for Partial Summary Judgment, makes it clear that appellant herein-Nicolet-was precluded from litigating the dangerousness of asbestos products on the basis of what the District Court thought to be the stare decisis effect of Borel's holdings of law and not on the grounds that Nicolet was collaterally estopped by any issue of fact decided in Borel.

In his pre-trial order precluding all fourteen original defendants from litigating the unreasonably dangerous character of asbestos, Judge Parker clearly distinguished between two groups of defendants: one group was precluded on the basis of collateral estoppel; and the other group, which included appellant Nicolet, was precluded on the basis of Borel's stare decisis effect. The order lists eleven defendants who had been parties to one or both of two prior asbestos cases: Borel, supra, and Condray v. Fibreboard, B-76-108-CA (E.D.Tex.1977). In both cases, it was determined that the asbestos products manufactured by these eleven defendants were unreasonably dangerous to users or consumers under Texas products liability law. Therefore, concluded Judge Parker, these eleven defendants were collaterally estopped from relitigating

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both the issue of whether they manufactured asbestos products, and the issue of whether these products were unreasonably dangerous. 6

Appellant Nicolet, however, was not included in the list of eleven defendants who were collaterally estopped, because Nicolet, along with two other defendants, had not been parties to either Borel, supra, or Condray, supra. As to these three defendants, Judge Parker cited Borel and held "as a matter of law," that products containing asbestos were defective and unreasonably dangerous to consumers or users of the product, and...

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27 practice notes
  • Chemetron Corp. v. Business Funds, Inc., No. 80-1658
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 16, 1982
    ...Parklane, which, as we stated recently, created a "need to redefine the doctrine of collateral estoppel," Migues v. Fibreboard Corp., 662 F.2d 1182, 1187 (5th Cir. 1981). Given Kaspar 's reservation of the question of finality in the collateral estoppel context and the guidance of Parklane,......
  • W.R. Grace & Co. v. Continental Cas. Co., Nos. 88-2902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 6, 1990
    ...on the issue of whether asbestos products were unreasonably dangerous to users or consumers. This court in Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir. Unit A 1981), reversed the grant of summary judgment on the based ground that our earlier case of Borel v. Fibreboard Paper Products......
  • Asbestos Litigation, In re, No. 86-5236
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 2, 1987
    ...appeared on the scene. See e.g. Hardy v. Johns-Manville Sales Corp. ("Hardy II") 681 F.2d 334 (5th Cir.1982); Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir.1982); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973); Hardy v. Johns-Manville Sales Corp. ("Hardy I"), 50......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., Bankruptcy No. 82 B 11656 (BRL)-82 B 11676 (BRL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 27, 1991
    ...emphasized "there is an urgent need for new approaches to the national tragedy of asbestos-related disease." Migues v. Fibreboard Corp., 662 F.2d 1182, 1189 (5th Cir. 1981). In 1986, the Fifth Circuit noted that "because asbestos-related diseases will continue to manifest themselves for the......
  • Request a trial to view additional results
27 cases
  • Chemetron Corp. v. Business Funds, Inc., No. 80-1658
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • August 16, 1982
    ...Parklane, which, as we stated recently, created a "need to redefine the doctrine of collateral estoppel," Migues v. Fibreboard Corp., 662 F.2d 1182, 1187 (5th Cir. 1981). Given Kaspar 's reservation of the question of finality in the collateral estoppel context and the guidance of Parklane,......
  • W.R. Grace & Co. v. Continental Cas. Co., Nos. 88-2902
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 6, 1990
    ...on the issue of whether asbestos products were unreasonably dangerous to users or consumers. This court in Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir. Unit A 1981), reversed the grant of summary judgment on the based ground that our earlier case of Borel v. Fibreboard Paper Products......
  • Asbestos Litigation, In re, No. 86-5236
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 2, 1987
    ...appeared on the scene. See e.g. Hardy v. Johns-Manville Sales Corp. ("Hardy II") 681 F.2d 334 (5th Cir.1982); Migues v. Fibreboard Corp., 662 F.2d 1182 (5th Cir.1982); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973); Hardy v. Johns-Manville Sales Corp. ("Hardy I"), 50......
  • In re Joint Eastern & Southern Dist. Asbestos Lit., Bankruptcy No. 82 B 11656 (BRL)-82 B 11676 (BRL)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 27, 1991
    ...emphasized "there is an urgent need for new approaches to the national tragedy of asbestos-related disease." Migues v. Fibreboard Corp., 662 F.2d 1182, 1189 (5th Cir. 1981). In 1986, the Fifth Circuit noted that "because asbestos-related diseases will continue to manifest themselves for the......
  • Request a trial to view additional results

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