Odum v. Celotex Corp.
| Decision Date | 12 July 1985 |
| Docket Number | No. 84-8313,84-8313 |
| Parties | Prod.Liab.Rep.(CCH)P 10,588 Sara Lucile ODUM, Individually and as Executrix of the Estate of Bennie Lee Odum, Deceased, Plaintiff-Appellant, v. The CELOTEX CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Eugene C. Brooks, IV, Savannah, Ga., for plaintiff-appellant.
Charles B. Mikell, Jr., Savannah, Ga., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Georgia.
Before RONEY and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.
This is one of three cases heard together involving a death caused by alleged exposure to asbestos-containing products. The law has been developed in Blackston v. Shook & Fletcher Insulation Co., --- F.2d 1480, 1482-1486 (11th Cir.1985). The application of that law in the other case, Lee v. Celotex Corp., 764 F.2d 1489, 1490-1491 (11th Cir.1985), resulted in an affirmance of a summary judgment for defendant. In this case, a record review reveals genuine issues of material fact as to whether defendant's asbestos-containing product was used at plaintiff's decedent's job site and whether plaintiff's decedent worked in proximity to the use of defendant's asbestos-containing product. We therefore reverse the summary judgment entered for the defendant and remand the case for further proceedings.
Bennie Lee Odum, an electrician, served from 1936 to 1943 in the United States Navy and from 1943 to 1974 as a civilian employee of the Navy at the Glynco Naval Air Station in Glynco, Georgia. During his career he allegedly was exposed to asbestos-containing products. In 1979, he sought medical attention for extreme shortness of breath and lack of energy. He was diagnosed as having asbestosis. He died on December 25, 1979. According to the death certificate, the direct cause of death was heart failure attributable to arteriosclerosis of the heart.
Plaintiff Sara Lucile Odum filed this action on behalf of her deceased husband against 22 defendants, including the Celotex Corporation, alleging that her husband's exposure to defendants' products was a "direct and proximate" cause of his death. The district court has since granted summary judgment motions to 17 of those defendants and denied summary judgment to the other five on the exposure issue. Celotex is a defendant in this suit due to the fact that in 1972 it became the successor-in-interest to the Philip Carey Manufacturing Company ("Philip Carey"). Plaintiff represents that asbestos-containing products manufactured by Philip Carey were used at Glynco Naval Air Station during Odum's employment there.
Celotex moved for summary judgment on the ground that plaintiff presented insufficient evidence of Odum's exposure to Philip Carey's asbestos-containing products. In response to the motion, plaintiff filed affidavits from Nicholas Baker and Hugh Tankersley and a later deposition of Baker. This evidence must be viewed in the light most favorable to the plaintiff as the nonmoving party, drawing all reasonable inferences in favor of the plaintiff. Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983); Impossible Electronics Techniques v. Wackenhut Protective System, Inc., 669 F.2d 1026, 1031 (5th Cir. Unit B 1982). We must decide whether, on the evidence offered, a jury could reasonably draw an inference adverse to the defendant on the fact issue critical to this litigation: whether Odum was exposed to Philip Carey's asbestos-containing products. See generally Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 486 (1984).
The district court, which is managing a large number of these cases, followed the principle it has established to define what a plaintiff must show to prove such exposure: that a particular defendant's asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used. Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481-1482 (11th Cir.1985). Testimony of co-workers who can identify a plaintiff by name as having worked with or around a particular defendant's asbestos-containing products is substantial evidence of exposure in asbestos cases. Migues v. Fibreboard Corp., 662 F.2d 1182, 1185 (5th Cir. Unit A 1981).
Baker was a pipefitter and insulator who had worked at Glynco Naval Air Station at various times between 1959 and 1961. He stated in an affidavit that he had worked in...
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...1294, 1298 (11th Cir.1983), since it is the province of the jury to assess the probative value of the evidence, see Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985). The district court must not "assess[ ] the probative value of any evidence presented to it, for this would be an un......
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...lead to litigation until people exposed to this product developed cancer many years after the initial exposure. See Odum v. Celotex Corp., 764 F.2d 1486 (11th Cir.1985); Insurance Co. of North America v. Forty-Eight Insulations, Inc., 633 F.2d 1212, 1214 n. 1 (6th Cir.1980), reh'g granted a......
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