Thompson v. Johns-Manville Sales Corp.

• Decision Date: 16 September 1983
• Docket Number: 82-3038,JOHNS-MANVILLE,Nos. 82-3033,82-3242 and 82-3354,s. 82-3033
• Citation: 714 F.2d 581
• Parties: Wilford Leroy THOMPSON, Jr., Plaintiff-Appellant, v.SALES CORP., et al., Defendant, Raybestos-Manhattan, Inc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 581

714 F.2d 581

Wilford Leroy THOMPSON, Jr., Plaintiff-Appellant, v. JOHNS-MANVILLE SALES CORP., et al., Defendant, Raybestos-Manhattan, Inc., et al., Defendants-Appellees.

Nos. 82-3033, 82-3038, 82-3242 and 82-3354.

United States Court of Appeals, Fifth Circuit.

Sept. 16, 1983.

M.H. Gertler, New Orleans, La., for plaintiff-appellant in all cases.

James B. Irwin, Alexander N. Breckenridge, IV, New Orleans, La., for defendant-appellee in No. 82-3033.

Bienvenu, Forter, Ryan & O'Bannon, Robert N. Ryan, William L. Brockman, New Orleans, La., for defendant-appellee in No. 82-3038.

Watson, Blanche, Wilson & Posner, Felix R. Weill, Baton Rouge, La., for defendant-appellee in No. 82-3242.

Leach & Paysse, Michael A. Britt, New Orleans, La., for defendant-appellee in No. 82-3354.

Appeals from the United States District Court for the Middle District of Louisiana.

Before GOLDBERG, GEE and RANDALL, Circuit Judges.

GEE, Circuit Judge:

This Louisiana diversity appeal requires us to determine whether the law of that state would dispense with proof of causation against some of multiple defendants in an asbestosis case.

Plaintiff Thompson, employed as an insulation worker from 1952 to 1978, handled products containing asbestos during that period. As a result, he contends, he inhaled dust and fibers that produced the disease or condition of asbestosis. He was able to recall the brand names of some of the products to which he was exposed. Because he did not recall those of today's four appellees and was unable to point to any other evidence connecting their products with his alleged injuries, each was granted summary judgment on the ground that as to it the element of causation was lacking as a matter of law. Thompson appeals, suggesting the applicability to his case of various legal theories that he asserts dispense with causation as requisite to a recovery of damages. Partly on the basis of an Erie guess, we affirm.

We are met at the threshold of our analysis with the contention of several appellees that since Mr. Thompson filed no response to their motions for summary judgment, we need look no further and must affirm on that basis.

Appellees point to no case law supporting their proposition but do cite FRCP 56(e), which reads in relevant part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The Notes accompanying the 1963 Amendment to this rule explain that these two sentences were added to overcome a line of cases which existed, chiefly in the Third Circuit, permitting parties defending against motions for summary judgment to rest on their pleadings.

The quoted language generally supports the argument advanced; however, recent precedent in our circuit, by which we are bound, squarely defeats it. In White v. Thomas, 660 F.2d 680, 682-83 (5th Cir.1980), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148, we held that the court must look to the allegations of facts made in the pleadings even where plaintiff,

filed nothing in opposition to the motion save a memorandum asserting that some of the facts were disputed. Even in cases where the party against whom summary judgment is sought fails to comply with Fed.R.Civ.P. 56(e), it is inappropriate to grant summary judgment on the merits on those issues whose decision depends on resolution of evident factual disputes not put beyond dispute by the affidavit, especially if a limited evidentiary hearing did not afford the party an opportunity to adduce his full case.

Various theories are advanced by Mr. Thompson for dispensing with proof that the products of these defendants caused or contributed to cause his condition. Some clearly will not serve to do so.

Clearly inapposite to his case are such authorities as Hilburn v. Johnson, 240 So.2d 767 (La.Ct.App.1970), and Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952). These permit the imposition of joint and several liability on persons whose separate wrongful actions, not done in concert, contribute in unknown proportions to cause an indivisible injury. The first concerns two persons who collided with a motorcyclist, causing his death. The second treats of two pipeline carriers whose separate salt water lines ruptured, polluting a lake. In neither was there doubt that each of the two defendants in fact contributed to the overall injury in some degree; and neither authority does more than decline to exonerate a defendant merely because the amount by which he contributed to cause it cannot be ascertained. Even less in point are concert of action theories, where persons acting in knowing collaboration cause an injury and are held liable in solido for the effect of their common scheme.

Also to be distinguished are theories of alternative liability such as those of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) (liability imposed on both of two hunters who fired toward plaintiff, burden on each defendant to show he did not cause injury), and of group res ipsa loquitur. Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.Ct.App.1981). All of these concern defendants who were proved to have some factual connection with the plaintiff's injury; to apply them to defendants as to which there is no proof of any such connection would beg the question of causation entirely. Like the indivisible injury cases, these shift the burden of proof of causation from the injured plaintiff to those defendants who were connected with it and one or more of whom undoubtedly caused it although, unlike those cases, the result may be that--because of his inability to prove himself innocent--one who in fact contributed nothing to the injury may still be held liable for it. The policy choice underlying such theories seems to be that in the extreme case where one or more of a defined group unquestionably caused an injury and the choice is between exonerating all because the plaintiff cannot show which did so and holding all liable who cannot prove their innocence, the latter result is preferable. Such is not the case here, where a large group of defendants whose products Thompson did recall using remain before the court. These defendants are not members of it.

Mr. Thompson's final set of theories do, in fact, dispense with particular proof of causation. These are ones of "enterprise" and "market share" liability, exemplified by Hall v. E.I. DuPont de Nemours & Co., 345 F.Supp. 353 (E.D.N.Y.1972), suggesting the possibility of joint industry-wide liability for particular blasting cap injuries, and Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), imposing and allocating several liability by market share. We see little purpose in discussing in detail the potential applicability of these theories to Mr. Thompson's case; writing in diversity, we write on the wind. Louisiana will or will not adopt either or both at some future time. In no reported case has it done so at present, nor have any substantial number of other jurisdictions. Both theories represent radical departures from traditional theories of tort liability. All that Thompson can advance in support of his claim that Louisiana would adopt either if presented his case is a supposed general tendency or trend on the part of Louisiana courts to expand the liability of manufacturers.

That is not enough to support our adoption for Louisiana of a particular and radical mode of its expansion. Such departures are for the Louisiana courts, not for us. See Rhynes v. Branick Mfg. Corp., 629 F.2d 409 (5th Cir.1980) ("product line" liability).

AFFIRMED.

GOLDBERG, Circuit Judge, dissenting:

Today the majority has determined to take an Erie guess and "write upon the wind." The majority predicts that Louisiana, if faced with the novel and distinct problems of asbestos related injury, would do nothing more than reflexively apply traditional tort doctrines. I am unwilling to arrogate to myself the decisionmaking duties and competence of the Louisiana Supreme Court. Rather than writing upon the wind, I would consult the chief meteorologists; ...