Wisniewski v. Johns-Manville Corp., JOHNS-MANVILLE

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: Before ALDISERT, Chief Judge, GIBBONS and WEIS; ALDISERT; WEIS
• Citation: 759 F.2d 271
• Docket Number: 82-1046,Nos. 82-1045,JOHNS-MANVILLE,EAGLE-PICHER
• Decision Date: 29 March 1985
• Parties: WISNIEWSKI, Susan and Klock, Debra Wisniewski, Appellants, v.CORP., Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., Owens-Illinois, Inc., Celotex Corporation, Keene Corporation, Unarco Industries, Inc. v.INDUSTRIES, INC., Owens-Corning Fiberglas Corporation. Janet M. RICE, as parent and natural guardian of Valerie D. Rice and Thomas W. Rice, Janet M. Rice, in her own right and Paul A. Rice, Appellants, v.CORP., Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., Owens-Corning Fiberglas Corp., Owens-Illinois, Inc., Celotex Corporation, Eagle-Picher Industries, Inc., Amatex Corporation, Unarco Industries, Inc., Fibreboard Corporation, Southern Textile Corp., H.K. Porter Co., Inc., Porter Hayden Co., Abex Corporation, Maremont Corporation, Lear Siegler, Inc., Bendix Corporation, J.P. Stevens, Inc., Uniroyal, Inc., Union Carbide Corporation, Georgia-Pacific Corporation, General Motors Corporation. . Submitted Under Third Circuit Rule 12(6),

Page 271

759 F.2d 271 WISNIEWSKI, Susan and Klock, Debra Wisniewski, Appellants,
v.
JOHNS-MANVILLE CORP., Johns-Manville Sales Corporation,
Raybestos-Manhattan, Inc., Owens-Illinois, Inc.,
Celotex Corporation, Keene Corporation,
Unarco Industries, Inc.
v.
EAGLE-PICHER INDUSTRIES, INC., Owens-Corning Fiberglas Corporation.
Janet M. RICE, as parent and natural guardian of Valerie D.
Rice and Thomas W. Rice, Janet M. Rice, in her own
right and Paul A. Rice, Appellants,
v.
JOHNS-MANVILLE CORP., Johns-Manville Sales Corporation,
Raybestos-Manhattan, Inc., Owens-Corning Fiberglas Corp.,
Owens-Illinois, Inc., Celotex Corporation, Eagle-Picher
Industries, Inc., Amatex Corporation, Unarco Industries,
Inc., Fibreboard Corporation, Southern Textile Corp., H.K.
Porter Co., Inc., Porter Hayden Co., Abex Corporation,
Maremont Corporation, Lear Siegler, Inc., Bendix
Corporation, J.P. Stevens, Inc., Uniroyal, Inc., Union
Carbide Corporation, Georgia-Pacific Corporation, General
Motors Corporation. Nos. 82-1045, 82-1046. United States Court of Appeals,
Third Circuit. Submitted Under Third Circuit Rule 12(6),
March 29, 1985.
Decided April 11, 1985.

Page 272

Norman Perlberger, Mitchell S. Cohen, James R. Kahn, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellants.

Michael J. Plevyak, Andrew J. Trevelise, Malcolm & Riley, West Chester, Pa., for appellee, Celotex Corp.

Robert S. Forster, Jr., Krusen, Evans & Byrne, Philadelphia, Pa., for appellee, Owens-Corning Fiberglas Corp.

Barbara Pennell, Joseph R. Thompson, Philadelphia, Pa., for appellee, Eagle-Picher, Industries, Inc.

Oliver C. Biddle, Ballard, Spahr, Andrews & Ingersoll, Philadelphia, Pa., for appellee, Raybestos-Manhattan, Inc.

James A. Young, Daniel J. Zucker, Obermayer, Rebmann, Maxwell & Hippel, Philadelphia, Pa., for appellee, Owens-Illinois, Inc.

Howard M. Girsh, Steinberg & Girsh, Philadelphia, Pa., for appellee, Union Carbide Corp.

Clayton H. Thomas, Jr., Philadelphia, Pa., for appellee, Abex Corp.

Joseph H. Foster, White & Williams, Philadelphia, Pa., for appellee, Southern Textile Corp.

Dudley Hughes, Detweiler, Hughes & Kokonos, Philadelphia, Pa., for appellee, Unarco Industries, Inc.

Walter S. Jenkins, McWilliams & Sweeney, Philadelphia, Pa., for appellee, Maremont Corp.

Audrey J. Becker, David E. Prewitt, Philadelphia, Pa., for appellee, Porter Hayden Co.

Perry S. Bechtle, LaBrum & Doak, Philadelphia, Pa., for appellee, Keene Corp.

Charles W. Craven, Jo Fineman White, Marshall, Dennehey, Warner, Coleman & Goggin, Philadelphia, Pa., for appellees, Johns-Manville Corp. and Johns-Manville Sales Corp.

Page 273

Alan Klein, Drinker, Biddle & Reath, Philadelphia, Pa., for appellees, Uniroyal, Inc. and Georgia-Pacific Corp.

Edward R. Paul, Nilon, Paul & Mardinly, Media, Pa., for appellee, Lear Siegler, Inc.

George J. Lavin, Jr., Liebert, Short, FitzPatrick & Lavin, Philadelphia, Pa., for appellee, General Motors Corp.

G. Wayne Renneisen, George A. Amacker, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for appellee, Bendix Corp.

Before ALDISERT, Chief Judge, GIBBONS and WEIS, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Chief Judge.

This diversity case requires us to predict what the Supreme Court of Pennsylvania would decide if faced with claims brought by relatives of asbestos workers for negligent infliction and intentional infliction of emotional distress caused by the illness and subsequent deaths of the workers. The district court held that, under Pennsylvania law, appellants failed to state a claim upon which relief could be granted, and dismissed the claims pursuant to F.R.Civ.P. 12(b)(6). We affirm as to the negligent infliction cause of action, but reverse as to the intentional infliction claim.

I.

Appellants are the wife and children of men who have died from exposure to asbestos. They brought suit against Johns-Manville and other manufacturers and vendors of asbestos products, based on a variety of theories, including products liability and infliction of emotional distress. The only issues presented in this appeal are those involving the emotional distress claims.

In the pleadings, appellants raised claims based on both negligent and intentional infliction of emotional distress. They alleged that their fear of contracting cancer due to household exposure to asbestos contained on their husband's/fathers' work clothes and tools caused identifiable physical symptoms, such as headaches. No symptoms, however, arose directly from their exposure to the asbestos itself. The district court dismissed the emotional distress claims and this appeal followed.

II.

Appellants contend that they may recover for negligent infliction of emotional distress either because asbestos fibers have impacted on their lungs or because they fall within the "zone of danger" of such an impact. Relying on an intentional infliction of emotional distress theory, appellants also maintain that they can recover damages resulting from the fear of future illness.

Our standard of review for Rule 12(b)(6) dismissals was stated in Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444 (3d Cir.1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1280, 55 L.Ed.2d 791 (1978) (citations omitted):

The standard by which the orders must be tested is whether taking the allegations of the complaint as true, ... and viewing them liberally giving plaintiffs the benefit of all inferences which fairly may be drawn therefrom, ... "it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claim which would entitle [them] to relief."

III.

At the outset, we must make several points. In diversity cases, because a federal court must apply the substantive law of the state in which it sits, Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the federal court often must engage in a substantial amount of conjecture as to what the state's highest court would decide if faced with the case. This aspect of our decisionmaking becomes especially troublesome when, as here, the state supreme court purposefully avoids an issue, leaving us in an ambiguous situation with little to guide us. Although lower state court decisions are not controlling on an issue on which the highest court of the state has not spoken, federal courts must

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attribute significant weight to these decisions in the absence of any indication that the highest state court would rule otherwise. See, e.g., Commissioner v. Estate of Bosch, 387 U.S. 456, 464-65, 87 S.Ct. 1776, 1782-83, 18 L.Ed.2d 886 (1967); West v. American Telephone & Telegraph Co., 311 U.S. 223, 237, 61 S.Ct. 179, 183, 85 L.Ed. 139 (1940).

Moreover, we are very conscious of the specific context in which we decide this case. Litigation stemming from the manufacture and distribution of asbestos, a known carcinogen, has reached crisis proportions. State and federal court dockets are swollen with these cases. Major corporations are threatened with, or already have declared, bankruptcy as a result of this litigation. See In re Amatex Corp., 755 F.2d 1034 (3d Cir.1985). Our duty, however, is to decide the case before us. We leave to Congress or the state legislatures and, where relevant, to the state courts the task of expanding or restricting liability for asbestos production.

Finally, we note that it is the procedural posture of this appeal that controls our decision. Under the federal notice pleading rules, the threshold for stating a cause of action to survive a Rule 12(6) motion is very low. Unlike an appeal from a grant of summary judgment, we do not decide this case on the basis of supporting factual affidavits, depositions, or documents, but only on the naked averments of a complaint filed under the notice pleading tradition. With these precepts in mind, we now turn to the merits of the question presented.

IV.

Settled Pennsylvania law clearly disposes of the negligent infliction of emotional distress claim. In Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984), the Superior Court of Pennsylvania reviewed the dismissal of a claim for negligent infliction of emotional distress based on the risk to appellant's own health from exposure to asbestos fibers transmitted into the household by her husband. In affirming the dismissal, the court held: "We agree with the lower court that until Thelma Cathcart is able to allege some physical injury or some medically-identifiable effect linked to her exposure to asbestos particles, her claim for negligent infliction of emotional distress is not legally cognizable." Id. at 152, 471 A.2d at 508. See also Berardi v. Johns-Manville Corp., --- Pa.Super. ---, 482 A.2d 1067 (1984) (relying on Cathcart ). Appellants in this case have alleged no injuries that stem from exposure to the asbestos itself. Thus, believing that the Supreme Court of Pennsylvania would approve the thorough analysis of the decision in Cathcart, we hold that Cathcart controls our decision on this issue, and that the district court's dismissal of the negligent infliction claim was proper.

V.

Current Pennsylvania law, however, does not clearly state whether appellants should be allowed to proceed with their intentional infliction claim. The Supreme Court of Pennsylvania has held that a claim based on intentional infliction of emotional distress presents a valid cause of action. Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970). The court sustained this complaint, however, based on its extremely bizarre circumstances. Plaintiffs' fourteen-year old son was struck by a motor vehicle driven by the defendant. Without attempting to obtain medical assistance or to notify the police or the victim's parents, the defendant removed the body from the scene of the accident, stored the body in his garage, and a few days later buried the body in a field. More than two months later, the partially decomposed body was found and the remains returned...