Thompson v. Johns-Manville Sales Corp., JOHNS-MANVILLE

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before GOLDBERG, GEE and RANDALL; GEE; GOLDBERG
• 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.
• Decision Date: 16 September 1983
• Docket Number: 82-3038,JOHNS-MANVILLE,Nos. 82-3033,82-3242 and 82-3354

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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

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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...