Peerman v. Georgia-Pacific Corp.

• Decision Date: 08 September 1994
• Docket Number: GEORGIA-PACIFIC,No. 93-3501,93-3501
• Citation: 35 F.3d 284
• Parties: Prod.Liab.Rep. (CCH) P 14,022 Patricia A. PEERMAN, Individually and as Administratrix, of the Estate of Gerald Gene Peerman, Plaintiff-Appellant, v.CORPORATION and Turner & Newall, PLC, a Foreign Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 284

35 F.3d 284

Prod.Liab.Rep. (CCH) P 14,022

Patricia A. PEERMAN, Individually and as Administratrix, of

the Estate of Gerald Gene Peerman, Plaintiff-Appellant, v. GEORGIA-PACIFIC CORPORATION and Turner & Newall, PLC, a

Foreign Corporation, Defendants-Appellees.

No. 93-3501.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 22, 1994.

Decided Sept. 8, 1994.

Stephen L. Williams (argued), Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, IN, Timothy E. Eble, Ness, Motley, Loadholt, Richardson & Poole, Barnwell, SC, and Michael Mixson, and Richard H. Middleton, Jr., Middleton & Mixson, Savannah, GA, for plaintiff-appellant.

Robert D. MacGill (argued) and Andrew J. Detherage, Barnes & Thornburg, Indianapolis, IN, for Georgia-Pacific Corp., defendant-appellee.

Michael A. Bergin (argued), Julia M. Blackwell, Karl M. Koons, III, and Richard A. Huser, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Turner & Newall, PLC, defendant-appellee.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Patricia Peerman filed this wrongful death action alleging that her husband, Gerald Peerman, died from an illness caused by exposure to airborne asbestos from products manufactured and sold by Georgia-Pacific Corporation and Turner & Newall, plc (now known as T & N plc). Federal jurisdiction is based on diversity of citizenship. See 28 U.S.C. Sec. 1332(a). The district court granted summary judgment to Georgia-Pacific and T & N. We affirm.

BACKGROUND

Gerald Peerman was employed by Babcock & Wilcox (B & W) at its Mt. Vernon, Indiana, plant from 1963 to 1982. The plant, a facility for the manufacture of parts and sub-assemblies for large utility boilers, consisted of several buildings and covered about 99 acres. During the majority of his employment with B & W, Mr. Peerman worked in the shipping and receiving department, where he was responsible for loading and unloading products shipped to and from the plant as well as transporting products within the plant. Mr. Peerman also worked as a supervisor in the shipping and receiving department, in which capacity he traveled throughout the plant as needed. During his tenure at the Mt. Vernon plant, Mr. Peerman might have been exposed to asbestos dust.

Masses of asbestos fibers, when disturbed, tend to break down into tiny dust particles which become suspended in the air. Knowledge of the dangers of inhaling and ingesting asbestos dust dates back at least to the First Century. Barry I. Castleman, M.D., Asbestos: Medical and Legal Aspects 1 (3d ed. 1990). In recent times, it has been documented that the disabilities associated with the inhalation and ingestion of asbestos dust manifest themselves primarily in three diseases: asbestosis, pulmonary and bronchogenic carcinoma, and mesothelioma. Asbestosis, the earliest known and most common asbestos-related disease, manifests itself 10 to 40 years after exposure to significant quantities of asbestos. Inhalation of asbestos particles initiates a scarring process that destroys air sacs in healthy lung tissue; and this, in turn, results in a decrease in pulmonary function and lung volume. Gray's Attorneys' Textbook of Medicine p 205C.11(1) (3d ed. 1980). Pulmonary and bronchogenic carcinoma is the uncontrolled multiplication of epithelial cells in the lungs. It does not generally manifest itself until at least 15 years after the initial exposure to asbestos. Id. p 205C.71. Mesothelioma is a rare cancer of the membrane lining the lungs, chest cavity, and abdominal cavity. It may take 30 to 35 years for mesothelioma to manifest itself, but the disease is invariably fatal. Id. p 205C.72.

In December 1985, three years after he left B & W, Mr. Peerman died of malignant mesothelioma. Mrs. Peerman alleges in her suit that, in the course of his duties at the Mt. Vernon plant, Mr. Peerman was exposed to asbestos dust from the defendants' asbestos-containing products and that this caused him to develop mesothelioma. ^* During the The district court granted summary judgment on the ground that Mrs. Peerman had failed to produce evidence to support a reasonable inference that the defendants' products caused Mr. Peerman to contract mesothelioma. The court applied a test for causation under which Mrs. Peerman was required to produce evidence that Mr. Peerman had been exposed to asbestos from the defendants' asbestos-containing products. The court found that, although Mrs. Peerman had produced evidence that Georgia-Pacific's Ready Mix Joint Compound and T & N's Limpet were used at the same general work site where Mr. Peerman worked, she had not produced evidence that Mr. Peerman was exposed to asbestos from these products.

                1960s and 1970s, Georgia-Pacific manufactured and sold a pre-mixed joint compound, "Ready Mix" joint compound, that contained asbestos.  Ready Mix was a plaster-like substance that was used to seal and smooth the joints between adjoining pieces of wallboard.  It was applied with a caulking gun.  Sometime between 1972 and 1979, construction workers applied Ready Mix joint compound to the walls of "Building 219" of the plant.  T & N's predecessor manufactured and sold a spray-on insulation for drywall construction called "AA Limpet Asbestos Fibre."   During a one-week period sometime between 1970 and 1975, following a fire at the plant, construction workers sprayed Limpet on the north wall of an area of the plant known as "Five Bay."
                

DISCUSSION

We review the grant of summary judgment to T & N and Georgia-Pacific de novo. See Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 499-500 (7th Cir.1994). Summary judgment is appropriate "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 judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We view the record and all justifiable inferences drawn from it in the light most favorable to the party against whom judgment was entered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

It is agreed in this case that Indiana law governs the issue whether the defendants' asbestos-containing products caused Mr. Peerman to develop mesothelioma. The parties disagree on what the test for causation in asbestos cases is in Indiana's courts, and it is this dispute to which the parties devote most of their efforts. Neither the Supreme Court of Indiana nor the Indiana Court of Appeals has enumerated a test for causation in asbestos cases. Georgia-Pacific and T & N urge that the test that would be adopted by the Indiana Supreme Court is the one...