Mooney v. Fibreboard Corp., Civil A. No. B-78-223-CA.
| Citation | 485 F. Supp. 242 |
| Decision Date | 14 January 1980 |
| Docket Number | Civil A. No. B-78-223-CA. |
| Parties | R. L. MOONEY, Sr. v. FIBREBOARD CORPORATION et al. |
| Court | U.S. District Court — Eastern District of Texas |
Marlin Thompson, Stephenson, Thompson & Dies, Orange, Tex., for plaintiff.
George A. Weller, Weller, Wheelus & Green, Beaumont, Tex., for Fibreboard Paper Products Corp.
John G. Bissell, Strong, Pipkin, Nelson, Parker & Bissell, Beaumont, Tex., for Johns-Manville Products Corp.
Gregory Neill Jones, Stephen C. Dillard, Fulbright & Jaworski, Houston, Tex., for Owens-Corning Fibreglas Corp.
Frank M. Bean, Bean & Manning, Houston, Tex., for Eagle-Picher Industries, Inc.
Gordon R. Pate, Beaumont, Tex., for Pittsburgh Corning Corp.
Gerald P. Coley, Vinson & Elkins, Houston, Tex., for Unarco Industries, Inc.
Lipscomb Norvell, Jr., Benckenstein & Norvell, Beaumont, Tex., for Philip Carey Corp. (now Celotex).
John G. Tucker, Orgain, Bell & Tucker, Beaumont, Tex., for Rubberoid Corp.—A Division of GAF Corp.
John H. Boswell, B. Stephen Rice, Boswell, O'Toole, Davis & Pickering, Houston, Tex., for Armstrong Cork Co.
James W. Mehaffy, Mehaffy, Weber, Keith & Gonsoulin, Beaumont, Tex., for Standard Asbestos Mfg. & Insulating Co. Dale Dowell, Reinstra, Reinstra & Dowell, Beaumont, Tex., for Nicolet Industries, Inc.
This is an asbestosis case; at issue is collateral estoppel.
During the years from 1940 to 1970, the plaintiff, R. L. Mooney, Sr., was employed as an insulator. As part of his job as an insulator he handled large quantities of insulating materials containing asbestos dust and fibers. Mr. Mooney now believes that as a result of his former employment as an insulator and consequent exposure to asbestos he has sustained serious injuries to his lungs and respiratory system, tires easily, coughs, suffers from shortness of breath and loss of sleep, and is forced to endure excruciating pain.
Restatement (Second) of Torts § 402A(1) (1965). Borel v. Fibreboard, 493 F.2d 1076, 1087 (5th Cir. 1973). In order for Mr. Mooney to establish his cause of action he must prove that:
In order to avoid proving element number "2" of his cause of action, the plaintiff has moved for partial summary judgment. See Fed.R.Civ.P. 56. As grounds for his motion, he argues that six of the corporations ("Six") he has brought suit against, Pittsburgh Corning Corporation, Armstrong Cork Company, Philip Carey Corporation (now Celotex), Rubberoid Corporation—A Division of GAF Corporation, Johns-Manville Products Corporation, and Fibreboard Paper Products Corporation, were parties to Borel v. Fibreboard, 493 F.2d 1076 (5th Cir. 1973), an action in which the United States Court of Appeals for the Fifth Circuit affirmed a federal diversity judgment upon a jury finding that asbestos products as manufactured, marketed, sold, or distributed were unreasonably dangerous and defective within the meaning of section 402A of the Restatement (Second) of Torts, and are thereby precluded from relitigating that issue in the present action. He further argues that four other corporations ("Four"), Owens-Corning Fibreglas Corporation, Standard Asbestosis Manufacturing & Insulating Company, Unarco Industries, Inc., and Eagle-Picher Industries, all of whom were named defendants but settled with the plaintiff prior to a judgment on the merits in Borel, are also precluded from relitigating whether asbestos products as manufactured, marketed, sold, or distributed are defective and unreasonably dangerous due to the identity of interest of each of these Four defendants and the Six defendants who were parties to the judgment in Borel. Lastly, Mr. Mooney argues that another defendant, Nicolet Industries, Inc., a defendant in this action who was not named as a party in Borel, should also be precluded from relitigating whether asbestos products as manufactured, marketed, sold or distributed are defective and unreasonably dangerous since this defendant shares an identity of interest with the Six defendants who were parties to the judgment in Borel.
As this action is brought within the diversity jurisdiction of the Court, there is at the outset the question of the applicable law. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Several of the defendants have argued in this case that the state law on collateral estoppel must be applied in federal court when deciding an action based on diversity of citizenship jurisdiction.
This Court does not agree. Although there is authority in this Circuit for the proposition that "because this is a diversity case, the law of the state where the District Court sits controls questions of res judicata and estoppel." Breeland v. Security Ins. Co., 421 F.2d 918, 921 (5th Cir. 1969) (citing cases); see also Maher v. City of New Orleans, 516 F.2d 1051 (5th Cir. 1975) (dictum). Seldom, however, do such simple statements supply satisfying solutions in every case in which issues of collateral estoppel arise. In Breeland, the precise question before the court was whether a prior federal criminal conviction for fraud was conclusive of a fraud issue in a civil suit brought under diversity of citizenship. The Fifth Circuit thought that the law of the situs of the district court, Louisiana, applied and, after a detailed examination of the Louisiana law of collateral estoppel proved fruitless, concluded by relying on "modern trends." Id. at 921-22.
Indeed, the most cursory examination of the preclusiveness of judgments reveals several possibilities. To be sure, the Supreme Court of the United States has clearly held that state court judgments are res judicata in a subsequent federal proceeding based upon diversity jurisdiction. Angel v. Bullington, 330 U.S. 183, 192, 67 S.Ct. 657, 662, 91 L.Ed. 832 (1947). The most authoritative decision of the Fifth Circuit to discuss this area of the law, Aerojet-General Corporation v. Askew, 511 F.2d 710 (5th Cir. 1975), holds that federal law governs whether a prior federal court judgment based on diversity jurisdiction is res judicata in a subsequent case brought under federal question jurisdiction, id. at 715. Of course neither Aerojet-General nor Angel are squarely on point, as each involve res judicata rather than collateral estoppel, and neither explicitly answer whether a prior federal diversity judgment is preclusive of issues raised in a subsequent federal diversity action. Nevertheless, this Court is persuaded that the reasoning underlying those decisions does support a holding that federal law controls whether a prior federal diversity judgment is preclusive of issues raised in a subsequent diversity action and at least one court in the Circuit has so held.
In Willis v. Fournier, 418 F.Supp. 265 (M.D.Ga.), aff'd, 537 F.2d 1142 (5th Cir. 1976) (table), the plaintiff sought to recover damages for the death of her husband resulting from a collision between the automobile he was driving and a truck being driven by the defendant. Earlier, the plaintiff had brought a federal diversity action against the defendant's employer and the jury had determined as an issue in the case that the driver of the truck, the defendant in the subsequent action, had not been negligent. Id. at 265-66. When the defendant driver sought to estop the plaintiff from relitigating the issue of the defendant's negligence, the court agreed and applied principles of federal collateral estoppel over the plaintiff's objection that the law of Georgia controlled. The court quoted from Aerojet-General:
The importance of preserving the integrity of federal court judgments cannot be overemphasized—out of respect for the federal courts and for the policy of bringing litigation conclusively to an end. If state courts could eradicate the force and effect of federal court judgments through supervening interpretations of the state law of res judicata, federal courts would not be a reliable forum for final adjudication of a diversity litigant's claims.
and continued:
The question in the instant case is not one of res judicata since the defendant here was not a party to the previous suit as that rule requires. Nevertheless, the holding of the Aerojet-General court is equally applicable to questions of collateral estoppel as well. That doctrine, of course, precludes a party to which it applies from disputing facts which it has already litigated. As such, the rule involves a question of the methods for determining disputed facts which, in a federal court, are to be resolved under federal principles. Moreover, the federal interests in bringing a lawsuit to a close and not diverting resources from consideration of case...
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