Wisniewski v. Johns-Manville Corp.

Decision Date30 January 1987
Docket NumberJOHNS-MANVILLE,No. 86-,Nos. 86-1253 and 86-1254,EAGLE-PICHER,No. 86-1253,86-1253,86-,s. 86-1253 and 86-1254
Citation812 F.2d 81
Parties, Prod.Liab.Rep.(CCH)P 11,262 WISNIEWSKI, Susan and Klock, Debra Wisniewski 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. Appeal of Susan WISNIEWSKI and Debora Wisniewski Klock, inJanet 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,1254, 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.
CourtU.S. Court of Appeals — Third Circuit

Norman Perlberger, Mitchell S. Cohen, Thomas E. Kopil (argued), Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for appellants.

McCarter & English, Philadelphia, Pa., for appellees Owens-Illinois, Inc. and Keene Corp.; James F. Hammill, of counsel; Nathan A. Schachtman (argued), on brief.

Edward R. Paul, James R. Flandreau, Nilon, Paul & Mardinly, Media, Pa., for appellee Lear-Sieglar, Inc.

George J. Lavin, Jr., Gerard Cedrone, George J. Lavin Associates, Philadelphia, Pa., for appellee General Motors Corp.

William F. Kiniry, Mary A. Maher, Harvey, Pennington, Herting & Renneisen, Ltd., Philadelphia, Pa., for appellee Allied Corp., Successor-in-Interest by merger to the Bendix Corp.

Before ALDISERT, Chief Judge, WEIS, Circuit Judge, and FISHER, Judge. *


ALDISERT, Chief Judge.

This court is not a stranger to this diversity case governed by Pennsylvania law involving claims by relations of certain decedents against asbestos manufacturers. When it was before us in Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985) ("Wisniewski I ") we affirmed the district court's several determinations except in one limited area: a panel majority decided to remand to the district court to consider whether a claim could be made out under the theory of intentional infliction of emotional distress. One member of the panel would have affirmed outright. After remand, in a summary judgment proceeding the district court held that such a claim could not withstand legal scrutiny on the basis of the evidence before it. Again the plaintiffs have appealed in consolidated appeals. We affirm.


Appellants are the widow or children of Walter Wisniewski and Paul Rice, who allegedly died as a result of exposure to asbestos products manufactured by appellees. They filed suit in the district court in 1981 alleging, inter alia, that the asbestos manufacturers had exposed the claimants to asbestos dust through their husband's or fathers' clothing or tools, and that they suffered severe emotional distress as a result of their fears of contracting asbestos-related diseases.

On November 25 and December 9, 1981, the district court dismissed the Wisniewski and Rice complaints pursuant to Rule 12(b)(6), F.R.Civ.P., for failure to state a claim. Both sets of plaintiffs appealed. This court affirmed the district court's dismissal of claims for negligent infliction of emotional distress but remanded for additional discovery their claims for intentional infliction of emotional distress. Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985) ("Wisniewski I "). After remand, and upon consideration of a summary judgment proceeding, on March 28, 1986 the district court granted judgment for appellees in both actions. Wisniewski v. Johns-Manville Corp., Civ. No. 81-0489 (E.D.Pa. March 28, 1986), reprinted in app. at 7-13; Rice v. Bendix Corp., Civ. No. 81-0929 (E.D.Pa. March 28, 1986), reprinted in app. at 2002. These consolidated appeals by the claimants followed.


It is particularly important to emphasize our standard of review, because that standard provides the basis for reconciling the result here with that of Wisniewski I. The earlier appeal required us to review the dismissal of appellants' claims pursuant to Rule 12(b)(6), F.R.Civ.P. 1 We noted that the procedural posture of this appeal ... controls our decision. Under the federal notice pleading rules, the threshold for stating a cause of action to survive a Rule 12(b)(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.

759 F.2d at 274; see also id. at 275.

By contrast here, on review of the district court's disposition of a motion for summary judgment, we are required to apply the same test that the district court should have used initially: summary judgment is properly granted only if, upon review of the evidentiary record, "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P. In making this determination, all reasonable inferences must be drawn in favor of the non-movant. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).


Appellants first contend that the district court erred in considering the asbestos manufacturers' motions for summary judgment because the defendants "did not support their motion by the 'detailed facts' which would justify summary judgment." Br. for appellants at 15 (citing Wisniewski I, 759 F.2d at 276). Appellants apparently argue that summary judgment is always inappropriate if the defendant's motion is not supported by "affidavits or other materials denying the allegations of the plaintiffs' complaints." Id.

The Supreme Court rejected a virtually identical argument in Celotex Corp. v. Catrett, --- U.S. ----, ----, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (reversing court of appeals' holding that defendant's "summary judgment motion was rendered 'fatally defective' by the fact that [defendant] 'made no effort to adduce any evidence, in the form of affidavits or otherwise, to support its motion.' " ). The Court held that "the plain language of Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at ----, 106 S.Ct. at 2552. See also Anderson v. Liberty Lobby, Inc., --- U.S. ----, ----, 106 S.Ct. 2505, 2509-12, 91 L.Ed.2d 202 (1986); Matsushita Electric Industrial Co. v. Zenith Radio Corp., --- U.S. ----, ----, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Although the Court acknowledged that a party seeking summary judgment must "inform[ ] the district court of the basis for its motion," it found "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Celotex at ----, 106 S.Ct. at 2553. 2

The record here conclusively demonstrates that appellees properly supported their motions for summary judgment. In the Wisniewski case, appellees' motion was accompanied by over 200 pages of exhibits and affidavits. App. at 30-243. These materials included depositions and answers to interrogatories in which appellants admitted that they had not been directly exposed to appellees' products; that they did not suffer from any asbestos-related disease or physical injury; that their psychological problems were related to the death of their father; that their fears of future asbestos-related injury were the product of widely available public information; that they had no knowledge of their father's exposure to appellees' asbestos products; and that they had no reason to believe that appellees had acted intentionally, outrageously or with ill will toward them. Appellees' counsel also submitted affidavits concerning their review of appellants' trial exhibits and answers to interrogatories. The affidavits attested that appellants had not introduced sufficient evidence to support their claims for intentional infliction of emotional distress. In the Rice case, appellees submitted over 300 pages of exhibits and affidavits in support of their motion for summary judgment. App. at 2042-2368. These materials were reviewed in a nineteen page appendix that purportedly identified those portions of the record contradicting necessary factual elements of appellants' claims. App. at 2042-60.

On this record, it cannot reasonably be maintained that the asbestos manufacturers failed to inform the district court of the basis for their motion. See Celotex at ----, 106 S.Ct. at 2552. Contrary to appellants' contentions, the manufacturers supported their motion with more than mere "conclusory assertions." See br. for appellants at 14. Indeed, they appear to have exceeded the minimum requirements of Celotex and Rule 56 in supporting their motions for summary judgment. The district court, therefore, did not err in considering them.


Once the manufacturers met their obligation to inform the district court of the basis for the motions, the claimants were required to establish the existence of genuine issues of material fact. Celotex at ---- - ----, 106 S.Ct. at 2552-55; Anderson at ---- - ----, 106 S.Ct. at 2509-12. On appeal they contend that they met this burden, and that summary judgment was therefore improper.

Their primary theory of recovery is set forth in ...

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