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Case v. Fibreboard Corp. (1987)

Our plain-English summary of Case v. Fibreboard Corp. (Oklahoma Supreme Court, September 22, 1987).

Bobbie Edwin Case and his wife Eva sued twenty-two asbestos product makers in federal court in Oklahoma. Mr. Case said he was a sheet metal worker in Oklahoma from 1949 on and was exposed to asbestos-containing products made and sold by the defendants, leaving him with severe, permanent, disabling injuries. He could not identify which products or manufacturers were involved, and the federal district court granted summary judgment to all defendants. On appeal, the Tenth Circuit asked the Oklahoma Supreme Court whether Oklahoma recognizes collective liability, such as market share liability, when the plaintiff cannot identify who made the products. The Oklahoma court said no. It explained that the California DES case relied on a single, interchangeable product with one kind of risk, whereas asbestos covers several mineral types with different risks and appears in thousands of products. It also rejected alternative liability, concert of action and enterprise liability, and said a compensation program for asbestos victims is for the legislature.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

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The decision

  • Court: Oklahoma Supreme Court
  • Decided: September 22, 1987
  • Citation: 743 P.2d 1062
  • Docket: No. 67749
  • Stage: Other
  • State: Oklahoma

Outcome. Answering a question certified by the Tenth Circuit, the Oklahoma Supreme Court held that Oklahoma would not recognize market share or other collective liability in asbestos injury cases where the plaintiff cannot identify the specific tortfeasors, favoring the defendant manufacturers over Mr. and Mrs. Case.

What the court held. Oklahoma does not recognize market share liability or other collective liability theories (alternative liability, concert of action, enterprise liability) in asbestos injury litigation when the plaintiff cannot identify the specific manufacturers whose products caused the injury; creating a compensation scheme is for the legislature.

Issues decided: Causation, Design Defect, Product Identification.

The people and their exposure

  • Bobbie Edwin Case: unspecified asbestos-related injuries
Who Work Where When Products
Bobbie Edwin Case sheet metal worker Oklahoma 1949 through the present

The defendants

Decisions this opinion cites

Earlier decisions in our library that the court cited:

  • Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.
  • Blackston v. Shook & Fletcher Insulation Co. (U.S. Court of Appeals, Eleventh Circuit, 1985). The Eleventh Circuit affirmed summary judgment for AC&S, Inc. against pipefitter Benjamin Blackston, holding that his evidence could not show he worked with or near AC&S's asbestos-containing products.
  • Thompson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1983). The Fifth Circuit affirmed summary judgment for four defendants (Raybestos-Manhattan and others) against plaintiff Thompson, who could not show their products caused his asbestosis; one judge dissented and would have certified the question to the Louisiana Supreme Court.
  • Hardy v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1982). The Fifth Circuit reversed the district court's omnibus order, which had applied nonmutual offensive collateral estoppel and judicial notice against the asbestos manufacturer defendants, so the defendants prevailed and the plaintiffs lost the order.
  • Copeland v. Celotex Corp. (Florida District Court of Appeal, 3rd District, 1984). The appeals court reversed the trial court's dismissal with prejudice of the Copelands' third amended complaint against Celotex, held that it stated a cause of action, and remanded for further proceedings.
  • Starling v. Seaboard Coast Line R. Co. (U.S. District Court, Southern District of Georgia, 1982). The court dismissed the market share/industrywide liability, implied warranty and intentional tort counts in the asbestosis cases, in favor of the defendant manufacturers, but refused to dismiss the fraud count in the Buie and Starling cases.
  • Hardy v. Johns-Manville Sales Corp. (U.S. District Court, Eastern District of Texas, 1981). The district court granted Forty-Eight Insulations' motions for discovery and leave to file cross-actions on a market share theory, denied the sixteen defendants' motion to reconsider the collateral estoppel order (amending it slightly), and certified the collateral estoppel question for interlocutory appeal.

Later decisions citing this one

4 later decisions in our library cite this one:

  • Black v. Abex Corp. (North Dakota Supreme Court, 1999). The North Dakota Supreme Court affirmed summary judgment for Allied-Signal, Borg-Warner, Chrysler and General Motors, dismissing Rochelle Black's market share and alternative liability claims.
  • Ferris v. Gatke Corporation (California Court of Appeal, 1st Appellate District, 4th Division, 2003). The Court of Appeal affirmed the judgment for Gatke Corporation, holding the trial court properly barred plaintiffs' market share (Sindell) theory and properly granted nonsuit on the civil conspiracy claims.
  • Leng v. Celotex Corp. (Illinois Appellate Court, 1st District, 1990). The appellate court affirmed the trial court's dismissal of the market share liability counts against Celotex and the other defendants, refusing to adopt market share liability in Illinois asbestos cases.
  • Sholtis v. American Cyanamid Co. (New Jersey Superior Court, Appellate Division, 1989). The Appellate Division held the trial judge erred in refusing the plaintiffs' supplemental proofs, reinstated the claims against Porter Hayden, remanded the claims against the other Wellington defendants for reconsideration under new exposure standards, and affirmed summary judgment for John Crane.

On our site

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

743 P.2d 1062 (1987)

Bobbie Edwin CASE and Eva Case, Plaintiffs/Appellants,

v.

FIBREBOARD CORPORATION; Johns-Manville Sales Corporation; Owens-Corning Fiberglass

Corp.; Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corporation; Celotex Corporation; GAF

Corporation; Armstrong Cork Company; Standard Asbestos Manufacturing and Insulating

Company; Nicolet Industries, Inc.; Keene Corporation; Combustion Engineering, Inc.; Forty-Eight

Insulation, Inc.; Ryder Industries, Inc.; Owens-Illinois, Inc.; Raymark Industries, Inc.; Flintkote

Company; Rock Wool Manufacturing Company; H.B. Fuller Company; Unarco Industries, Inc.; H.K.

Porter Company; and National Gypsum Company, Defendants/Appellees.

No. 67749.

September 22, 1987.

Supreme Court of Oklahoma.

Ungerman, Conner & Little by Mark H. Iola, Tulsa, for plaintiffs/appellants.

Abowitz & Welch by Mort G. Welch and Murray E. Abowitz, Oklahoma City, for defendants/appellees Fibreboard Corp., Owens-Corning Fiberglass, Eagle-Picher Industries, Inc., Pittsburgh-Corning Corp., Celotex Corp., GAF Corp., Owens-Illinois, Inc., Flintkote Co., Rock Wool Manufacturing Co., H.K. Porter Co., and National Gypsum Co.

Sanders & Carpenter by Philip McGowan, Tulsa, for defendant/appellee Nicolet Industries, Inc.

Feldman, Hall, Franden, Woodward & Farris by William S. Hall, Tulsa, for defendant/appellee Combustion Engineering, Inc. Jones, Givens, Gotcher, Bogan & Hilborne, P.C. by Alfred K. Morlan and Joan Godlove, Tulsa, for defendant/appellee Raymark Industries, Inc.

Barkley, Rodolf, White & Hartman by Mike Barkley and Andrew S. Hartman, Tulsa, for defendant/appellee H.B. Fuller Co. [*1063] LAVENDER, Justice:

The United States Court of Appeals for the Tenth Circuit has certified a question of law to this Court pursuant to the Uniform Certification of Questions of Law Act.[1] The question asks:

"In an action brought under a theory of manufacturer's products liability in which precise identification of the tortfeasors cannot be verified, does Oklahoma recognize a form of collective liability as an alternative theory of relief when the plaintiff's alleged injury arises from the ingestion of asbestos fibers?"

The facts certified by the federal court in connection with the question posed are:

In a diversity action brought under Oklahoma's manufacturer's products liability law and filed in the United States District Court for the Northern District of Oklahoma, Bobbie and Eva Case alleged from the years 1949 through the present, Mr. Case was employed as a sheet metal worker in various locations in the State of Oklahoma. In that capacity, it is alleged Mr. Case was exposed to asbestos containing products

manufactured, distributed, and sold by the defendants. Mr. Case claims that as a result of ingesting asbestos dust fibers and other elements of these products, he suffered severe, permanent, and disabling injuries. Mr. Case claimed that the defendants' products were unreasonably dangerous.

Discovery initiated by the defendants disclosed that Mr. Case was incapable of identifying either the precise products to which he had been exposed or the precise manufacturers of those products. It is contended that the inability to make the identifications is not due to any negligence on the part of Mr. Case, but rather to the fact that because of the nature of his employment, he had no knowledge of the asbestos containing products

used at the jobsites at which he had worked. Thus, while the defendants have a connection to the

production, distribution, and sale of products containing asbestos, Mr. Case cannot connect any of them specifically to the products to which he has been exposed.

The plaintiffs contended they could maintain the action because of the unique nature of the injury causing agent and the illness it produces. Plaintiffs argued that under the circumstances of this case, Oklahoma would recognize [*1064] a theory of collective liability in which the defendants would share responsibility for plaintiffs' damages upon the basis of each defendant's share of the market for asbestos products

manufactured; distributed, or sold in Oklahoma.

Because of the failure to tie any of the named defendants to any specific product containing asbestos to which plaintiff Case was exposed, the federal district court granted summary judgment to each of the defendants and plaintiffs appealed. The federal appellate court has in turn sought the guidance of this Court on the assertion by plaintiffs that Oklahoma law would grant relief even though plaintiffs could not identify the individual tort-feasors.

In the present action plaintiffs have named as defendants twenty-two out of more than three hundred companies that have manufactured and marketed asbestos and asbestos-containing products.[2] Plaintiffs, in their briefs to this Court have suggested that their action is maintainable, though they have joined less than all possible tort-feasors and can identify none as a definite source of injury, on the basis that all manufacturers and marketers of asbestos should stand collectively liable for any injury occurring as a result of asbestos exposure. Plaintiffs further argue that any named defendant who cannot affirmatively prove that its products could not have been a possible source of their injury should stand jointly and severally liable for plaintiff's damages.

The genesis of plaintiffs' argument lies in the case of Sindell v. Abbott Laboratories.[3] In Sindell the California Supreme Court recognized a theory of liability based on the market share held by a manufacturer of a specific harmful substance. The court based its decision on the facts that DES,[4] although manufactured by some 200 companies,[5] was manufactured by each under an identical formula and was dispensed generically. The court thus held that the companies providing DES to the market which served the plaintiff in Sindell at the time the plaintiff's mother took the drug causing the plaintiff's injuries stood a chance of having caused her injuries proportional to its share of the market. The court also held that the liability for plaintiff's damages should be apportioned along the same proportional lines.

Although the market share theory of liability adopted in Sindell has been advanced as a basis of possible liability in asbestos related lawsuits where a plaintiff could not name the manufacturers of the products he was exposed to, it has been met with consistent disapproval.[6] Those cases cited by plaintiffs in which the market share theory of liability has apparently been adopted to dispense with the necessity of proving a link of causation between injury and a particular defendant's product have either been subsequently reversed,[7] or are cases from intermediate or trial courts reported unofficially.[8] [*1065] Plaintiffs maintain that those cases which have disapproved the market share theory of liability in the context of asbestos related injuries are distinguishable from the present case on the basis that each involved not only unidentified tort-feasors but also identified tort-feasors. In those cases the market share liability theory was found inapplicable to keep the unidentified tort-feasors in the action. Plaintiffs maintain that it was the presence of the identified tort-feasors upon which those courts rested their decisions, and contrast that situation with the present where plaintiffs maintain they can identify no individual tort-feasor. Thus plaintiffs argue that pure policy reasons should allow them to maintain their action against the named defendants under a theory of collective liability, since no defendants would otherwise remain in the case. Although the cases disapproving the application of market share liability to the asbestos litigation field did, with varying degrees of emphasis, cite the presence of identified tort-feasors as a reason for not applying market share theory, they also acknowledged other factors distinguishing asbestos litigation from the factual situation in which Sindell was decided.[9] It is of major importance that Sindell was decided in the context of a product that was truly fungible. DES was produced from a single formula and produced injury when used in a singular context; i.e. when given to pregnant women. Asbestos, on the other hand, is a name applied to a family of minerals, each member of which carries a different degree of risk:[10] The asbestos family consists of more than 30 different minerals of fibrous structure. The minerals' physical properties vary so that only six varieties are of substantial economic value. These six minerals are chrysotile, crocidolite, amosite, anthophyllite, tremolite, and actinolite. Chrysotile, known for its silky white color, its durability, and its flexibility, is the most widely used asbestos fiber. Manufacturers use it in the production of

asbestos textiles, cement products, friction materials, insulation, and paper products. It is the least dangerous of the economically useful fibers. Crocidolite, a harsher, blue fiber, is used in pipes, cement products, textiles, and felts for plastics. Crocidolite, which is resistant to acids and alkalides, is more difficult to process than many of the other fibers and is the most dangerous of the asbestos fibers. Amosite is a harsh, brown fiber. It is extremely heat resistant, and manufacturers use it in cement, pipes, refractory tiles, and plastic reinforcement. It is a moderately dangerous fiber. Anthophyllite is used in cement production and the chemical industry. Tremolite is used for talc filters and in the chemical industry. Actinolite usually is not used commercially. (Citation omitted)

Compounding the variables arising from the presence of different minerals with different risk factors is the fact that asbestos is present in more than three thousand products commonly found in the home and work environments:[11]

Primary uses of asbestos include floor tile; gaskets and packing; friction products; paints; coatings; sealants; plastics; asbestos-cement pipe; asbestos textiles; asbestos paper; and asbestos-cement sheet.

Secondary uses of asbestos include flooring; valve, flange, and pump sealants; clutch, transmission, and brake components; industrial friction materials; automobile coatings; roof coating and patch; electric motor components; piping; conduits for electric wires; packaging; components; gasket components; heat and

fireproof clothing; insulation for wiring; theater curtains; fireproof drapery; table pads and heat protective mats; molten glass handling equipment; insulation products; filters for beverages; [*1066] appliance insulation; hood vents for corrosive materials; electric switchboards; miscellaneous building materials; appliance

components; and cooling tower components.

Consumer uses include piping; decorative building panels; plaster and stucco; molded plastics; acoustical products; asphalt paving; caulking; motor armatures; paints; welding materials; drip cloths; fire doors; car components; oven and stove insulation; siding; shingles; floor tiles; chemical tanks; fire hoses; garments; gloves; filter media; boiler insulation; furniture; motion picture screens; roofing; rugs; wallboard; acoustical ceiling materials; insulation; electrical switches; hair dryers; clothes dryers; toasters; humidifiers; and toothbrushes. (citations omitted)

Thus the degree of risk arising from exposure to asbestos may differ not only depending on the form of the mineral encountered but on the form of the product in which it is encountered.[12]

Because the market share liability theory is a theory which eliminates proof of causation of injury for public policy reasons, [13] it must also be clearly founded in facts which support the link between the injury suffered and the risk to which the plaintiff was exposed. In the DES arena this cause and effect connection was clear cut. In the application to asbestos related injuries there are more complications:[14]

Before addressing the issue of which exposure caused the plaintiff's injury, a court must make a more

fundamental determination: did asbestos cause the plaintiff's disease? This determination comprises both the medical causation and the causation in fact issues: (1) is asbestos a competent producing cause of the

disease suffered by the plaintiff; and (2) are any other substances competent producing causes of the

plaintiff's disease, and are they in fact the cause of the plaintiff's injury? This issue frequently surfaces in asbestos product litigation because the most common plaintiff's diseases — asbestosis, mesothelioma, and lung cancer — may be caused by exposure to substances other than asbestos. Lung cancer is a common

disease resulting from exposure to a variety of carcinogens including chromates, nickel, coke oven

emissions, cigarette smoke, uranium, arsenic, auto emissions, and other pollutants. Likewise, medical

research indicates that the inhalation of numerous other types of fibrous substances may trigger

mesothelioma or cause scarring of the lung tissue identical to the symptoms of asbestosis. (citations omitted) In the Sindell case, and those following it, it was determined that public policy considerations supporting recovery in favor of an innocent plaintiff against negligent defendants would allow the application of a theory of liability which shifted the burden of proof of causation from plaintiff to defendants. However, as previously stated, that theory was crafted in a situation where each potential defendant shared responsibility for producing a product which carried with it a singular risk factor. The theory further provided that each potential defendant's liability would be proportional to that defendant's contribution of risk to the market in which the plaintiff was injured. This situation thus provided a balance between the rights of the defendants and the

rights of the plaintiffs. A balance being achieved, public policy considerations were sufficient to justify the application of the market share theory of liability.

In the asbestos related injury area however, as we have seen, the problem of balancing the contributions of each manufacturer to the risk of injury to a particular plaintiff are incalculably difficult when that plaintiff cannot furnish identification of a known tort-feasor. Unlike the DES cases, the injury does not arise at a specific time which can be related to a known ingestion of a dangerous substance. Asbestos [*1067] products retain their hazardous characteristics throughout their use and injury may occur from any exposure. This is illustrated by facts alleged in this case in which plaintiffs relate that injury may have occurred not from the installation of new materials, which might be identifiable as to manufacture, but from the ripping-out of old materials, installed at unknown dates.

Although plaintiffs in asbestos related injury cases may not be able in all cases to identify potential defendants, the public policy favoring recovery on the part of an innocent plaintiff does not justify the abrogation of the rights of a potential defendant to have a causative link proven between that defendant's specific tortious acts and the plaintiff's injuries where there is a lack of circumstances which would insure that there was a significant probability that those acts were related to the injury. We therefore would not recognize the applicability of a market share theory of liability to asbestos injury litigation under Oklahoma law. Such an application would impose on the individual members of the asbestos industry a program of compensation for injuries potentially caused by any member of the industry devoid of considerations of actual causation by the individual named as defendant. The creation of a program of compensation for victims of asbestos related injuries as a matter of policy is a matter for the legislative body and not for the courts.

As we find market share theory of liability inapplicable under the facts presented to us in conjunction with the present question, we also find the various other theories of collective liability referred to us by plaintiffs to be inapplicable to forge a theory under which they might recover. The applicability of alternative liability theory, concert of action theory and enterprise liability theory were all considered in connection with the DES cases and rejected as inapplicable.[15] The factors which rendered these theories inapplicable in the field of DES litigation are clearly present in the area of asbestos litigation and also render the theories inapplicable.

Our answer to the United States Court of Appeals for the Tenth Circuit is that Oklahoma would not recognize a form of collective liability as a theory of relief in an asbestos related injury litigation where the plaintiff is unable to identify specific tortfeasors.

All the Justices concur.

[1] 20 O.S. 1981 §§ 1601 through 1612.

[2] See Special Project, An Analysis of the Legal, Social and Political Issues Raised by Asbestos Litigation, 36 Vand.L.Rev. 573 (1983), at 613 n. 216. (Hereinafter cited as Special Project.)

[3] 26 Cal.3d 588, 163 Cal. Rptr. 132, 607 P.2d 924 (1980), cert. den. 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140. [4] Diethylstilbesterol, a drug which is a synthetic compound of the female hormone estrogen, and which was found to cause cancerous vaginal and cervical growths in females exposed to the drug prenatally. Id., 163 Cal. Rptr. at 133, 607 P.2d at 925. [5] Id., 163 Cal. Rptr. at 143, 607 P.2d at 935.

[6] See Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983) cert. den. 465 U.S. 1102, 104 S.Ct. 1598, 80 L.Ed.2d 129; Hannon v. Waterman Steamship Corp., 567 F. Supp. 90 (E.D.La. 1983); Prelick v. Johns-Manville Corp., 531 F. Supp. 96 (W.D.Pa. 1982); Starling v. Seaboard Coast Line R.R., 533 F. Supp. 183 (S.D.Ga. 1982); In re Related Asbestos Cases, 543 F. Supp. 1152 (N.D.Ca. 1982); Celotex Corp. v. Copeland, 471 So.2d 533 (Fla. 1985). And see Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985).

[7] Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353 (E.D.Tex. 1981), reversed 681 F.2d 334 (5th Cir.1982); Copeland v. Celotex Corp., 447 So.2d 908 (Fla.Ct.App. 1984), reversed 471 So.2d 533 (Fla. 1985).

[8] Menne v. Celotex, 3 Oct. 1986, Asbestos Lit. Rep. 13389 (U.S.D.C.Ks.); Goldman v. Johns-Manville Corp., 1 Aug. 1986, Asbestos Lit.Rep. 12954 (Ohio Ct. App.); Altenburg v. Johns-Manville Corp., 3 Jan. 1986, Asbestos Lit. Rep. 11452 (Wash.Super.Ct.). [9] See cases cited at footnote 6.

[10] Special Report, supra note 2, at 578 footnote 1.

[11] Special Report, supra note 2, at 578.

[12] Celotex Corporation v. Copeland, 471 So.2d at 538.

[13] Starling v. Seaboard Coast Line R.R., 533 F. Supp. at 187.

[14] Special Report, supra note 2, at 609, footnote 190.

[15] Sindell v. Abbott Laboratories, supra note 3; Martin v. Abbott Laboratories, 102 Wash.2d 581, 689 P.2d 368 (1984).

Sources

How to cite it

Cite the decision

Case v. Fibreboard Corp., 743 P.2d 1062 (Oklahoma Supreme Court September 22, 1987).

Cite our summary

“Summary of Case v. Fibreboard Corp.” AsbestosClaims.Law Library. https://asbestosclaims.law/library/cases/case-v-fibreboard-corp-1987.

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