Slaughter v. Southern Talc Co.

• Decision Date: 23 December 1991
• Docket Number: No. 90-8701,90-8701
• Citation: 949 F.2d 167
• Parties: , Prod.Liab.Rep. (CCH) P 13,016 Gerald S. SLAUGHTER, et al., Plaintiffs, Roma S. Bates, et al., Plaintiffs-Appellants, v. SOUTHERN TALC COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 167

949 F.2d 167

21 Fed.R.Serv.3d 1314, Prod.Liab.Rep. (CCH) P 13,016

Gerald S. SLAUGHTER, et al., Plaintiffs, Roma S. Bates, et al., Plaintiffs-Appellants, v. SOUTHERN TALC COMPANY, et al., Defendants-Appellees.

No. 90-8701.

United States Court of Appeals,

Fifth Circuit.

Dec. 23, 1991.

Daniel W. Andrews, Mike Davis, Byrd, Davis & Eisenberg, Austin, Tex., for plaintiffs-appellants.

John W. Grund, Ernest E. Staggs, Jr., Tilly & Graves, Denver, Colo., for Owens-Corning Fiberglas Corp.

J. Frank Kinsel, Cantey & Hanger, Ft. Worth, Tex., for Southern Talc.

Frank M. Bean, Rick Thamm, Bean & Manning, Houston, Tex., for Eagle-Picher Industries, Inc. Appeals From the United States District Court for the Western District of Texas.

Before POLITZ and HIGGINBOTHAM, Circuit Judges, and PRADO, ¹ District Judge.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Seventeen plaintiff-appellants are employees, former employees, or relatives of employees at the General Tire plant in Waco, Texas. They appeal a summary judgment granted to Southern Talc Co. and Owens-Corning Fiberglass. ² The district court denied substitution on the death of two plaintiffs, and that ruling is also before us.

The district court concluded that there was no jury question regarding plaintiffs' exposure to defendants' products. We disagree. We reverse the summary judgment in favor of OCF; however, we affirm the summary judgment granted to STC.

We also vacate the district court's order refusing to substitute Mrs. Moran and Mrs. Green, as individual plaintiffs for their deceased spouses. We reinstate the district court's earlier order granting their motion to substitute themselves individually and for the benefit of their children for their deceased spouses.

I.

This suit was filed on March 19, 1987 by 451 employees and former employees of the General Tire and Rubber Company against 13 producers and users of asbestos-containing products. The suit alleges that defendants' products caused pulmonary disease. After two years of discovery, defendants moved for partial summary judgment, on the grounds that 421 plaintiffs had suffered no pulmonary disease. The district court granted partial summary judgment in favor of defendants, and this court upheld the order on appeal. Slaughter v. Southern Talc Co., 919 F.2d 304, 308 (5th Cir.1990).

After the remaining parties had completed discovery, the district court granted summary judgment in favor of defendants. The district court found that plaintiffs failed to raise a fact question of producing cause, explaining that the plaintiff's evidence showed:

at best, only [that] ... the Defendants' products, as well as the same types of products of several other manufacturers and suppliers, were used at the plant; that "dust" was created when all these types of products were used or disturbed by accident or by repair; and that, generally, those who worked in the plant were exposed to the "dust."

The district court found that plaintiffs failed to show that they were exposed to any asbestos fibers from STC and OCF products. According to the district court, "there is no direct evidence that a particular product supplied by any of the Defendants released asbestos fibers which were inhaled by a particular Plaintiff " (emphasis in original).

The parties do not dispute that STC's and OCF's products were delivered to the General Tire Plant. There is evidence that Kaylo, an OCF insulation containing 15% asbestos, was delivered to or installed in the General Tire plant between 1960 and 1982. Southern Talc Co. concedes that over forty tons of its talc were actually delivered to the plant between 1981 and 1984. STC objects to plaintiffs' contentions that 120 tons of STC talc were delivered to the plant between 1964 and 1965. STC concedes, however, that "[STC] has records which indicate [that] 70 tons of ground talc ... may have been shipped in 1964 and 50 tons of ground talc ... may have been shipped in 1965." There is, therefore, evidence that over 160 tons of STC talc were delivered to the General Tire plant between 1964 and 1984.

It does not follow, however, that the delivered talc actually contained asbestos. It is true that a study by Dr. William E. Longo, Ph.D., apparently concluded that STC's talc contains 3% asbestos. That study, however, was based on small samples from the General Tire plant some time in 1987. There is no evidence that talc containing traces of asbestos in 1987 indicates asbestos in talc delivered several years earlier. To the contrary, asbestos does not appear uniformly in talc and may not be present at all.

Plaintiffs did not identify Kaylo insulation as such. They testified that "insulation" or "insulated pipes" were near their workplaces. OCF ceased manufacturing or delivering Kaylo after 1973. Three non-party witnesses identified insulation as OCF or Kaylo insulation. Joseph Lipscomb, an employee at the General Tire plant from 1969 until 1980, testified that "OCF insulation" was delivered to the receiving department while he worked there. Jim DeWitt, an insulator and pipefitter in the plant from 1962 until 1985, testified that he installed Kaylo and other OCF insulation on pipes "all over the plant." Finally, Richard Jackson, a plant worker from 1947 until 1983, testified that Kaylo and other kinds of OCF insulation were installed throughout the plant.

DeWitt testified that insulators and pipefitters periodically removed deteriorating insulation throughout the plant. Richard Jackson testified that pipe insulation was removed and replaced throughout the plant on a daily basis and that block insulation was removed and replaced on a weekly basis. According to DeWitt, Clifford Archer, and Jackson, when the pipe insulation was removed and replaced, visible dust would cover the workers in the area. In addition, Charles Ay, a non-party witness who visited the plant testified that "there was a voluminous amount of piping, that a great deal of piping was in disarray, and that it was a very dirty place to be."

All plaintiffs testified that they worked near insulated pipes. In addition, Bates, Gibson, Munos, Pryor, and Stump recalled that insulators replaced pipe insulation near them, and Gibson, Pryor, and Stump testified that insulation dust regularly covered them when the pipe insulation was repaired near them.

II.

The district court held that, under Texas law, plaintiffs had produced insufficient summary judgment evidence of actual exposure to defendants' products, a conclusion we review de novo. Salve Regina College v. Russell, --- U.S. ----, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

In a motion for summary judgment defendant-movants have the initial burden of "informing the district court of the basis for its motion and identifying those portions of the 'pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). If defendant-movants allege an absence of specific facts necessary for non-movants to establish an essential element of their case, then plaintiff-non-movants must respond by setting forth "specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the non-movant fails to do so, then summary judgment is awarded against the non-movant.

Under Texas law, plaintiffs must prove that asbestos fibers from defendants' products were an actual, producing cause of plaintiffs' injury. See Gaulding v. Celotex Corp., 772 S.W.2d 66, 68 (Tex.1989) ("A fundamental principle of traditional products liability law is that the plaintiff must prove that the defendants supplied the product which caused the injury").

A.

The plaintiffs have not raised an issue of fact as to whether STC's products caused their injuries: their evidence is insufficient to support a jury's inference that STC talc allegedly inhaled by plaintiffs contained asbestos.

The only evidence that STC's talc contained asbestos was Dr. Longo's study concluding that 3% of a sample of STC talc recovered from the General Tire plant in 1987 consisted of asbestos. There was, however, no evidence presented that STC talc contained any asbestos when it arrived at the General Tire plant years before Dr. Longo's study. Nor was there any testimony that asbestos naturally occurs in talc. Indeed, there was no evidence that the asbestos found in the 1987 sample had anything to do with its source: plaintiffs offered no explanation for the presence of trace amounts of asbestos in the talc. Plaintiff's counsel conceded at oral argument that he lacked any scientific evidence justifying an inference of asbestos in pre-1984 talc from the fact of asbestos in 1987 talc.

Plaintiffs had, in short, no evidence that STC's talc contained asbestos during the years in which plaintiffs allege that they were injured. We hold, therefore, that the district court did not err in awarding summary judgment in favor of STC.

B.

The claims against OCF are more difficult to resolve. Defendants do not dispute that their Kaylo insulation contains 15% asbestos. They contend instead that the evidence would not support a jury's inference that plaintiffs actually inhaled fibers from OCF's product. The district court agreed and granted summary judgment to OCF. While the question is close, we conclude that plaintiffs did produce sufficient evidence of exposure to withstand summary judgment.

The most frequently used test for causation in asbestos cases is the "frequency-regularity-proximity" test announced in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986). ³ Lohrmann held that a motion for summary judgment cannot be defeated merely by alleging work at a shipyard in which defendants' asbestos products had somewhere been present. Rather, there...