Starling v. Seaboard Coast Line R. Co.
Decision Date | 26 January 1982 |
Docket Number | CV 281-84 and CV 280-128.,Civ. A. No. CV 281-109 |
Citation | 533 F. Supp. 183 |
Parties | Ella Mae STARLING, Plaintiff, v. SEABOARD COAST LINE RAILROAD COMPANY, et al., Defendants. Ralph K. BUIE, Plaintiff, v. GAF CORPORATION, et al., Defendants. Robert E. STAPLETON, et al., Plaintiffs, v. OWENS-CORNING FIBERGLASS CORPORATION, et al., Defendants. |
Court | U.S. District Court — Southern District of Georgia |
COPYRIGHT MATERIAL OMITTED
Richard H. Middleton, Jr., Savannah, Ga., R. Jackson, B. Smith, Jr., Augusta, Fla., for plaintiff in all cases.
Ronald L. Motley, Barnwell, S. C., for plaintiff in Nos. 281-109 and 281-84.
Jesse W. Hill, Edward E. Dorsey, Sewell K. Loggins, Michael V. Elsberry, Atlanta, Ga., William C. Reed, Augusta, Ga., James E. Mahar, Jr., Gainesville, Ga., Patrick J. Rice, Neal W. Dickert, Augusta, Ga., Frederick F. Saunders, Jr., Mary E. Mann, John E. Talmadge, Atlanta, Ga., J. Douglas Stewart, George W. Brinson, Gainesville, Ga., J. Wayne Pierce, Henry E. Scrudder, Jr., Richard P. Schultz, Carr, Abney, Tabb & Schultz, Atlanta, Ga., Henry G. Garrard, III, Athens, Ga., Tommy T. Holland, Robert A. Barnaby, II, Malcolm McArthur, Albert H. Parnell, Atlanta, Ga., James M. Thomas, Bouhan, Williams & Levy, Savannah, Ga., Jeffrey Silberfeld, Garden City, N. Y., John T. Woodall, Savannah, Ga., William H. Whaley, Atlanta, Ga., Thomas Gray, Jr., Savannah, Ga., for defendants in all cases.
Peter K. Klintz, Atlanta, Ga., for defendants in No. 281-109.
Ann Bishop Conn, Atlanta, Ga., for defendants in Nos. 281-109 and 281-84.
Ashley Royal, Kent, Barrow & Royal, P. C., Savannah, Ga., for defendants in No. 281-84.
Charles B. Mikell, Jr., Savannah, Ga., Andrew T. Berry, Newark, N. J., Edgar A. Neely, Jr., Edgar A. Neely, III, and Richard K. Hines, V, H. Andrew Owen, Atlanta, Ga., William T. Daniel, Jr., Savannah, Ga., Williston C. White, Stephen L. Goldner, Atlanta, Ga., Paul W. Painter, Jr., R. Clay Ratterree, Karsman, Brooks, Painter & Callaway, P. C., Kenneth C. Etheridge, Asst. U. S. Atty., Savannah, Ga., for defendants in Nos. 281-84 and 280-128.
William S. Davies, Jr., Nelson, Mullins, Grier & Scarborough, Columbia, S. C., Larry Hogan, Atlanta, Ga., James B. Wall, Augusta, Ga., Marc Z. Edell, Morristown, N. J., for defendants in No. 280-128 and for third party defendants in No. 280-128.
Oliver B. Dickins, Jr., Atlanta, Ga., Timothy Callaway, III, Savannah, Ga., for defendants in No. 280-128.
The above-captioned actions, along with Finleyson v. Combustion Engineering, Inc., et al., CV 281-62 and Beasley v. Shook & Fletcher Insulation Co., et al., CV 281-132 comprise the asbestosis cases currently pending in this division of the Southern District of Georgia. The complaints in these cases allege at least five theories of liability: negligence, strict liability, civil conspiracy, breach of an implied warranty, and, in the alternative, so called "market share liability." Additionally, in both the Buie and Starling cases the plaintiffs also charge fraud and an intentional tort. The cases are currently before this Court on the motions of various defendants to strike the "market share liability" and implied warranty counts, and, where pleaded, the fraud and intentional tort counts.
For the following reasons the Court decides to grant the motions for each of the challenged counts except the fraud charge, which is pleaded in Count five of the Buie and Starling cases. Where the successfully challenged counts are pleaded they are hereby ORDERED dismissed.1
The most provocative of the theories of liability alleged in these cases is market share or industrywide liability, and the question before this Court is whether the assertion of such a theory sounds a cognizable claim under Georgia law.2Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Neither the Georgia appellate courts nor the Georgia legislature has squarely addressed the issue; therefore this Court will make its determination as though it were sitting as a Georgia appellate court. Stevens Industries, Inc. v. Maryland Casualty Co., 391 F.2d 411 (5th Cir.), cert. denied, 392 U.S. 926, 88 S.Ct. 2285, 20 L.Ed.2d 1386 (1968) ( ). The movants argue that the recognition of market share or industrywide liability would be an expansion of existing products liability law, and would be unconstitutional as violative of Georgia's Due Process Clause. The plaintiffs counter that the application of the theories to asbestosis cases would be a reasonable extension of Georgia's already adopted policy of alternative liability. Without deciding the constitutionality of these theories, the Court agrees with the movants that recognition of market share or industrywide liability would result in an unprecedented departure from traditional Georgia tort law. Furthermore, the Court believes that the legal and economic ramifications involved in moving towards insured compensation for asbestosis victims do not commend a judicial resolution to the problem. Deferring evaluation of the competing public policy considerations to the legislature would be consistent with an existing policy of judicial restraint in the products liability area. The Court therefore grants the defendants' motions and ORDERS dismissed the market share liability count in each of the pending asbestosis cases.
Under traditional products liability law, the imposition of liability depends upon the plaintiff's proving that the defendant manufacturer made the product that caused the plaintiff's injury. See Douglas v. Smith, 578 F.2d 1169 (5th Cir. 1978) (applying Georgia law); Annot., 51 A.L.R.3d 1344 (1973). Market share and industrywide liability are two approaches courts have adopted to aid plaintiffs in overcoming an inability to prove causation in products liability cases. See Comment, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv.L.Rev. 668 (1980) hereinafter Harvard Comment.
Industrywide liability is loosely based on the concert of action theory of liability. "The concert of action theory derives from a criminal law concept, aiding and abetting, and renders jointly and severally liable all who intentionally participate in an unlawful activity...." Ryan v. Eli Lilly & Co., 514 F.Supp. 1004, 1015 (D.S.C. 1981). See Restatement (Second) of Torts § 876 (1979). The common tortious activity is held to be the cause of the plaintiff's injury, and therefore all participants are held liable even if only one directly caused the harm. Harvard Comment, supra, at 670. Under industrywide liability, an industrywide standard of safety which is insufficient to protect product users "becomes itself the cause of plaintiff's injury, just as defendants' joint plan is the cause of injury ... under the concert of action plea." Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963, 997 (1978) hereinafter Fordham Comment. Independent adherence to the standard by each industry member renders it a "contributor to plaintiff's injury," and therefore a causative agent. Fordham Comment, supra, at 997. The theory was first applied in Hall v. E. I. Du Pont De Nemours & Co., 345 F.Supp. 353 (E.D.N.Y. 1972) where the plaintiffs were children who were injured by exploding blasting caps and were unable to identify the specific manufacturer of the caps. The plaintiffs alleged that the defendants had "actual knowledge" of both the risks to children and the "feasible safety measures" which could control the risks, and that the defendants had "obtained this knowledge through a jointly-sponsored trade association." Id. at 375. The Court held that, if proved, the allegations showed that the defendants had joint, or industrywide control of the risks, and this created a duty to minimize them by preventing defects and providing adequate warnings. Id. at 371-378. Once the plaintiffs demonstrated a breach of this duty the burden of proof shifted to the defendants to show that their product could not have caused the injury; the plaintiffs did not have to show direct causation.
The Hall approach was refined by the Fordham Comment, supra, which discussed the theory in the context of actions resulting from exposure to the drug DES.3 The comment author suggested that a plaintiff need not join all the possible manufacturers of the product which caused his injury.4 Instead the theory would apply as long as the plaintiff joined those manufacturers that accounted for an amount substantially greater than 50% of the total market sales of the product. Fordham Comment, supra, at 972. Furthermore, the author argued that damages under industrywide liability could be apportioned among the defendants according to their respective market share percentages. Fordham Comment, supra, at 999, 1000.
Market share liability, on the other hand, was not carved out of joint venture principles, but rather is a theory which eliminates proof of causation strictly for public policy reasons. The theory is an extension of the alternative liability principle, which was developed in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948), and is now embodied in the Restatement (Second) of Torts § 433B (1965). The alternative liability rule holds that when independent and simultaneous acts of negligence are committed against a party by two or more tortfeasors, but only one act results in injury, the plaintiff will be relieved from proving causation if the proof is unavailable. The reason for the rule is "the injustice of permitting proved wrongdoers, who among them have inflicted an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm." Restatement (Second) of...
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