Celotex Corp. v. Copeland (1985)

Our plain-English summary of Celotex Corp. v. Copeland (Florida Supreme Court, June 13, 1985).

Lee Loyd Copeland and his wife sued sixteen asbestos product manufacturers. Copeland worked as a boilermaker from 1942 to 1975 on 50 to 100 jobs, and he developed asbestosis and an asbestos-related cancer. He said the products were mostly insulation used in boilers, refrigeration units and ships. He could name some of the suppliers but not every product he was exposed to. The trial court dismissed the claim against Celotex and rejected the market share theory, and it ruled that the statute of limitations barred the claims against the other manufacturers. The Third District Court of Appeal reversed and approved market share liability. The Florida Supreme Court quashed that part of the ruling. It reasoned that market share liability exists for cases where no manufacturer can be identified, and Copeland had identified at least eleven. It also noted that asbestos products differ in toxicity. On limitations, it agreed that when Copeland's disease manifested itself was a fact question, since he was not diagnosed with asbestosis until 1978, so summary judgment was improper. The cases were sent back for trial, and Copeland could amend his complaint.

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.

The decision

• Court: Florida Supreme Court
• Decided: June 13, 1985
• Citation: 471 So.2d 533
• Docket: Nos. 65124, 65154 and 65394
• Stage: Appeal from motion to dismiss
• State: Florida

Outcome. 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.

What the court held. Market share liability is not needed, and the court did not adopt it, where the plaintiff can identify at least some manufacturers of the products that injured him. When a progressive asbestos disease manifested itself is a fact question that summary judgment cannot resolve.

Issues decided: Fault, Apportionment and Settlement Credits, Statute of Limitations, Product Identification.

Why this case is relevant

The Florida Supreme Court quashed a Florida appeals court's approval of market share liability in asbestos cases. It held the theory was not needed because the injured boilermaker had identified many of the manufacturers whose products he was exposed to, and it expressly declined to accept or reject the theory for Florida. The court stressed that asbestos products have widely divergent toxicities, unlike the single-formula drug for which the theory was developed. On the statute of limitations, it agreed that a creeping-disease claim accrues when the disease's effects manifest themselves, and held that when that happened was a fact question that summary judgment could not resolve.

Later courts have cited it most often on market share liability, many quoting its passage on differing toxicities. Courts in New Jersey, California and North Dakota, and federal courts in Pennsylvania and Michigan, cited it in explaining why market share liability is a poor fit for asbestos. The Florida Supreme Court relied on the toxicity passage in a ruling on expert causation testimony, and recounted the creeping-disease accrual rule. A Florida appeals court drew on it in apportioning fault in asbestos cases, and federal courts applying Florida law cite it for using traditional causation rules when products are identified.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Lee Loyd Copeland: asbestosis, asbestos-related cancer (type not stated)

Who	Work	Where	When	Products
Lee Loyd Copeland	boilermaker		1942-1975	pipe and block insulation, insulating cement, wet cements, cork sheets, cloth-covered sheets, blocks

The defendants

• The Celotex Corporation (manufacturer) · its asbestos trust
• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• The Flintkote Company (manufacturer) · its asbestos trust
• GAF Corporation (manufacturer) · its asbestos trust
• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Johns-Manville Sales Corporation (manufacturer)
• Eagle-Picher Industries, Inc. (manufacturer) · its asbestos trust
• Combustion Engineering, Inc. (manufacturer) · its asbestos trust
• H.K. Porter Company, Inc. (manufacturer)
• Raymark Industries, Inc. (manufacturer)
• Unarco Industries, Inc. (manufacturer)
• Pittsburgh Corning Corporation (manufacturer) · its asbestos trust
• Nicolet Industries, Inc. (manufacturer)
• Fibreboard Corporation (manufacturer) · its asbestos trust
• Keene Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Nolan v. Johns-Manville Asbestos (Illinois Supreme Court, 1981). The Illinois Supreme Court affirmed the appellate court's reversal of summary judgment for the defendants (Johns-Manville and others) and remanded to the circuit court, so the plaintiff's estate may proceed on the asbestosis claim.
• Louisville Trust Co. v. Johns-Manville Products (Kentucky Supreme Court, 1979). The Kentucky Supreme Court reversed the Court of Appeals' ruling that the limitations period barred the claim, held the Sampson estate's suit against Johns-Manville timely, and remanded for the Court of Appeals to consider Johns-Manville's other assignments of error.
• Harig v. Johns-Manville Products (Maryland Court of Appeals, 1978). The Maryland Court of Appeals answered certified questions from the federal district court, holding that Mrs. Harig's negligence and strict liability claims accrued on discovery of her latent disease, a ruling that favored her over Johns-Manville.
• 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.
• Karjala v. Johns-Manville Products Corp. (U.S. Court of Appeals, Eighth Circuit, 1975). The Eighth Circuit affirmed the $200,000 jury judgment for plaintiff Karjala against Johns-Manville, finding the jury instructions on strict liability/duty to warn and on the statute of limitations consistent with Minnesota law.
• Borel v. Fibreboard Paper Products Corporation (U.S. Court of Appeals, Fifth Circuit, 1973). The Fifth Circuit affirmed the jury verdict and judgment for Borel's widow against six asbestos insulation manufacturers, including Fibreboard, Johns-Manville, Pittsburgh Corning, Philip Carey, Armstrong Cork and Ruberoid, and denied rehearing.
• 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.
• Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (Illinois Appellate Court, 1st District, 1979). The appellate court reversed the summary judgment that the circuit court had granted to all defendants on limitations grounds and remanded, so the plaintiff estate may proceed and a fact-finder will decide when Nolan knew or should have known of his asbestosis.
• 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

21 later decisions in our library cite this one:

• DeLisle v. Crane Co. (Florida Supreme Court, 2018). The Florida Supreme Court quashed the Fourth District's decision, which had ordered a new trial for R.J. Reynolds (as Lorillard's successor) and a directed verdict for Crane, and remanded for reinstatement of DeLisle's $8 million final judgment.
• American Optical Corporation v. Spiewak (Florida Supreme Court, 2011). The Florida Supreme Court affirmed the Fourth District, holding that the Asbestos and Silica Compensation Fairness Act cannot constitutionally be applied retroactively to the asbestosis plaintiffs, who prevailed over American Optical and the other asbestos defendants.
• 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.
• Rutherford v. Owens-Illinois, Inc. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal's judgment, which had ordered a new trial for Owens-Illinois. It held that the burden-shifting instruction was error but harmless, and that the tobacco company defense issue was controlled by Richards, so the plaintiffs' judgment against Owens-Illinois was not overturned.
• Becker v. Baron Bros. (New Jersey Supreme Court, 1994). The New Jersey Supreme Court reversed the Appellate Division's affirmance of a jury verdict for plaintiff Edith Becker against General Motors and Englewood Brake and remanded for retrial, because the jury was wrongly told that all asbestos products sold without warnings are defective.
• Case v. Fibreboard Corp. (Oklahoma Supreme Court, 1987). 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.
• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Williams v. American Optical Corporation (Florida District Court of Appeal, 4th District, 2008). The appellate court reversed the trial courts' dismissals of the plaintiffs' asbestosis claims, holding the Florida Asbestos and Silica Compensation Fairness Act could not be applied to already-accrued claims, and remanded for further proceedings; plaintiffs won, defendants lost.
• 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.
• WR Grace & Co.—Conn. v. Dougherty (Florida District Court of Appeal, 2nd District, 1994). The appeals court affirmed the final judgment for the Dougherty plaintiffs against W.R. Grace and Owens-Corning, rejecting their challenges to the jury instructions, the deposition evidence and the sufficiency of the evidence of Grace's negligence.
• 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.
• Seckular v. Celotex (New Jersey Superior Court, Appellate Division, 1986). The Appellate Division reversed summary judgment for the defendants on limitations grounds and directed that plaintiffs' complaint be dismissed without prejudice, leaving the claim to be pursued in Florida alongside the pending Florida death action.
• Eagle-Picher Industries, Inc. v. Cox (Florida District Court of Appeal, 3rd District, 1985). The appeals court affirmed the money judgment for plaintiff Milton Cox against Eagle-Picher Industries, rejecting Eagle-Picher's challenge to the admission of cancer-risk evidence and its other claimed errors.
• Faddish v. CBS Corporation (U.S. District Court, Eastern District of Pennsylvania, 2010). The court overruled CBS Corporation's objections and denied its summary judgment motion on product identification, denied it without prejudice on the bare metal defense (leaving that to the transferor court), and denied it on the sophisticated purchaser defense, so Ruth Faddish's claim continues.
• Faddish v. General Electric Co. (U.S. District Court, Eastern District of Pennsylvania, 2010). The court adopted the magistrate panel's finding that a genuine factual dispute existed on product identification, but granted General Electric summary judgment on the government contractor defense, so the plaintiff lost her failure-to-warn claim against GE.
• Faddish v. Warren Pumps, LLC (U.S. District Court, Eastern District of Pennsylvania, 2010). The court overruled Warren Pumps' objections, adopted the magistrate panel's recommendation, and denied Warren's summary judgment motion on causation, while also adopting the unobjected finding that Warren is not Quimby Pump Company's successor-in-interest.
• Peter & Elpis Constantinides v. CBS Corporation (U.S. District Court, Eastern District of Pennsylvania, 2010). The court sustained CBS/Westinghouse's objections and granted summary judgment on the original gaskets and packing for lack of product-identification evidence, but denied summary judgment without prejudice on the bare metal defense and denied it on the sophisticated purchaser defense, so the plaintiffs partly lost and partly prevailed.
• Peter & Elpis Constantinides v. CBS Corporation (U.S. District Court, Eastern District of Pennsylvania, 2010). The court sustained CBS Corporation (Westinghouse)'s objection that no evidence tied Mr. Constantinides's injury to original Westinghouse gaskets and packing, but denied summary judgment without prejudice on the bare metal defense and denied it on the sophisticated purchaser defense, so plaintiffs won in part and CBS won in part.
• Marshall v. Celotex Corp. (U.S. District Court, Eastern District of Michigan, 1987). The court granted the defendant manufacturers' summary judgment motions on the alternative liability, market share liability and enterprise liability theories, and held the motion on the concert of action theory in abeyance pending a hearing on causation.
• Vigiolto v. Johns-Manville Corp. (U.S. District Court, Western District of Pennsylvania, 1986). The federal district court granted summary judgment to the asbestos manufacturer defendants because the plaintiff, the widow, could not identify which manufacturer's products her husband was exposed to, and market share and enterprise liability did not apply.

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.

471 So.2d 533 (1985)

CELOTEX CORPORATION, etal., Petitioners,

v.

Lee Loyd COPELAND, etal., Respondents.

Nos. 65124, 65154 and 65394.

June 13, 1985.

Supreme Court of Florida.

Thomas C. MacDonald, Jr., Clark Jordan-Holmes, Charles P. Schropp and Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, James W. Kynes, Tampa; Julian Clarkson of Holland & Knight, Tallahassee, for petitioner The Celotex Corp.

James E. Tribble, Diane H. Tutt and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner Owens-Corning Fiberglas Corp.

Michael K. McLemore of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for petitioner Eagle-Picher Industries, Inc.

Michael T. McKenna of Knecht & Whelchel, Coral Gables, for petitioner Nicolet, Inc.

C. Bryant Boydstun, Jr., of Lyle & Skipper, St. Petersburg, for petitioner Fibreboard Corp.

Arthur H. Taylor of Spencer, Taylor & Homer, Miami, for petitioner The Flintkote Co.

Jane N. Saginaw of Baron & Associates, Dallas, and Louis S. Robles, Miami, for respondents.

Norwood S. Wilner, of Zisser, Robison Spohrer, Wilner & Harris, Jacksonville, for amicus curiae Keene Corp. Steven R. Berger and Wolpe & Leibowitz, Miami, for amicus curiae H.K. Porter Co., Inc.

Carl D. Motes and Kimberly A. Ashby of Maguire, Voorhis & Wells, Orlando; and Jon W. Zeder and Douglas M. Halsey of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for amicus curiae Florida Defense Lawyers Association. [*534] Robert M. Klein and Caron E. Speas of Stephens, Lynn, Chernay, Klein & Zuckerman, Miami, for amicus curiae Pittsburgh Corning Corp.

James C. Rinaman, Jr., and Tracey I. Arpen, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for amicus curiae Owens-Illinois, Inc.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for amicus curiae The Academy of Florida Trial Lawyers.

OVERTON, Justice.

This asbestos-related injury case is before us on three petitions to review two decisions of the Third District Court of Appeal reported as Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984) (Celotex), and Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984) (Armstrong). The district court decisions involve the same basic factual circumstances relating to a suit instituted by Copeland, a former asbestos worker who contracted asbestosis and asbestos-related cancer, and his wife against sixteen manufacturers of asbestos products.

In Celotex the district court, in a split decision, reversed the trial court's grant of Celotex's motion to dismiss for failure to state a cause of action and expressly approved the use of the market share theory of liability in asbestos cases. The district court, in a separate order, certified the following question as being of great public importance:[1]

Whether market share liability as announced in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912 [101 S.Ct. 285, 66 L.Ed.2d 140], should be adopted in Florida. For the reasons expressed, we answer the certified question in the negative and quash the decision of the district court. We find the record indicates that Copeland has a proper cause of action against identified manufacturers of asbestos products and, therefore, there is no need to adopt the market share theory of liability in this cause.

In Armstrong the trial court granted summary judgments in favor of all petitioners on the ground that the statute of limitations barred the Copelands' action. In reversing, the district court found that, under the particular facts of this case, summary judgment was not proper because there was an issue of fact as to when the asbestos exposure manifested itself in a way that provided evidence of a causal relationship to the asbestos product. The district court also approved the use of the market share theory in accordance with its decision in Celotex. We find conflict with Vecta Contract, Inc. v. Lynch, 444 So.2d 1093 (Fla. 4th DCA), review denied, 453 So.2d 44 (Fla. 1984).[2] We approve that part of the Armstrong decision concerning the statute of limitations but, in accordance with our decision in Celotex, we quash that portion relating to the market share theory of liability.

Facts

The facts of this cause are as follows. Copeland worked from 1942 until 1975 as a boilermaker. During this time he was exposed to various asbestos products while employed in from 50 to 100 different jobs. Copeland became aware of the possible health hazards of asbestos dust in 1958 or 1959, but he did not suffer any physical problems until the late 1960's, and he was not conclusively diagnosed as having asbestosis until 1978.

Copeland and his wife filed suit in 1979, alleging that Copeland had been exposed to and injured by asbestos products manufactured and distributed by sixteen corporate defendants or their predecessors in interest. The sixteen companies originally named as defendants in the action are: Armstrong World Industries, Inc.; The Flintkote Company; GAF Corporation; Owens-Corning Fiberglas Corporation; Owens-Illinois, [*535] Inc.; Johns-Manville Sales Corporation; Eagle-Picher Industries, Inc.; Combustion Engineering, Inc.; H.K. Porter Company, Inc.; The Celotex Corporation; Raymark Industries, Inc.; Unarco Industries, Inc.; Pittsburgh Corning Corporation; Nicolet Industries, Inc.; Fibreboard Corporation; and Keene Corporation.

The action was based upon the theories of strict liability, negligence, and breach of warranty. The complaint alleged that the defendants failed to warn Copeland that exposure to asbestos products created a grave health hazard; that this failure to warn was the proximate cause of Copeland's contracting asbestosis and cancer; that, while Copeland could identify some of the products to which he was exposed, he could not identify each exposure that he sustained; that the products to which Copeland was exposed were unidentifiable as to manufacturer due to the fact that they were removed from the original containers when the exposure occurred; and that, because each exposure contributed to Copeland's injury, the doctrine of joint and several liability should be extended to each of the manufacturers through the application of the market share theory of liability that was adopted by the Supreme Court of California in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), to deal with injuries caused by DES, a drug prescribed to pregnant women to prevent miscarriages.

Celotex filed a motion to dismiss for failure to state a cause of action, asserting that Copeland had failed to set forth sufficient ultimate facts identifying what product was manufactured by Celotex, what defect allegedly existed, and when, where, and how the accident occurred. The trial court granted the motion on the ground that the theories of enterprise liability, market share liability, alternative liability, concert of action, or any other theories of liability addressed in Sindell were not cognizable under Florida law. The market share theory of liability is the subject of the district court's Celotex decision. The remaining manufacturers, including Armstrong Cork, subsequently filed motions for summary judgment on the ground that the action was barred by the running of the applicable statute of limitations, sections 95.031(2) and 95.11(3)(e), Florida Statutes (1981). The motions alleged that Copeland was on notice of the dangers of asbestos in the late 1960's; that he knew he had been inhaling asbestos dust during the 1960's; that he was having respiratory problems and sought medical attention in 1972; and that he had quit his job in 1975 because of his breathing problems. Further, the movants asserted that the evidence reflected that Copeland's action accrued no later than April, 1975, and, since he did not file his suit until June, 1979, the four-year statute of limitations period had run. The trial court granted the motions and dismissed the complaint

with prejudice. The trial court also granted a motion for summary judgment for three of the manufacturers on the ground that the record reflected no identification of any product produced by the manufacturers. In so ruling, the trial court specifically rejected the Sindell theory of liability. These issues are the subject of the district court's Armstrong decision. The record reflects that, in depositions, Copeland was able to specifically identify at least eleven of the defendant corporations as having supplied the asbestos products to which he had been exposed.[3] He also stated that the asbestos materials to which he had been exposed came in several different forms and were used for different purposes. Essentially all of the materials were used as insulation in boilers, refrigeration units, and ships. Copeland testified [*536] that the materials were used in different capacities and, consequently, each had different physical characteristics. Virtually all of the products were in the form of "wet" cements, "cork" sheets, cloth-covered sheets, and blocks. These materials contained asbestos which was gray or off-white in color and, in all but the wet cements, the asbestos was flaky or powdery. The Market Share Theory of Liability

The district court, in its opinion in Celotex, determined that Copeland alleged sufficient ultimate facts to be entitled to an opportunity to prove his allegations under the market share theory advanced in Sindell. The court noted that: (1) asbestosis results from cumulative exposure to asbestos dust and cancer attributable to asbestos may result from a single exposure; (2) manifestation of the diseases may not occur until many years after initial exposure; and (3) it is difficult, if not impossible, to determine which exposure is responsible for the disease. Accordingly, the district court held that under these circumstances the complaint sufficiently alleged a cumulative exposure injury as well as a cancer injury. 447 So.2d at 912-13. With regard to product identification, the district court noted that the complex nature of asbestos-related injuries made proof under traditional theories of causation extremely difficult and determined that the solution to this problem was the adoption of a modified version of the market share theory of liability.

The market share theory of liability, as expressed in Sindell, is asserted to be a modified version of the alternative liability theory. Sindell involved the drug DES, which was sold between 1941 and 1971 as a miscarriage preventative. Although the drug was manufactured and marketed by hundreds of companies, it is important to note that it was produced pursuant to a single formula. The plaintiff in Sindell, a woman who developed malignant tumors as a result of her mother's ingestion of DES, brought suit against eleven drug companies for her injuries. The complaint alleged that the companies were in the business of producing and selling the drug which was administered to the plaintiff's mother; that DES may cause certain deadly diseases which manifest themselves after ten or twelve years; that the companies knew or should have known that DES was a carcinogen with varying periods of latency; and that the companies failed to adequately test the drug and warn of potential dangers. Further, the complaint alleged that the companies were jointly liable because they acted in concert, according to express and implied agreements, and in reliance upon each other's testing and marketing methods. 607 P.2d at 926, 163 Cal. Rptr. at 133-34. Although the plaintiff knew that her injuries were caused by DES, she was unable to identify the manufacturer of the specific product that had been ingested by her mother which caused her injury. In resolving this problem, the California Supreme Court noted that the passage of time between the ingestion of DES and the manifestation of its adverse effects, coupled with the fact that the manufacturers did not themselves dispense the drug to individual patients and, consequently, did not know who was prescribed their product, made identification of the actual tortfeasor impossible. Further, the court found that only a small percentage of the manufacturers of DES had been named in the suit, thereby rendering a strict application of the alternative liability theory inequitable. Accordingly, the Sindell court, in establishing the market share theory, required the plaintiff to join the manufacturers of a "substantial" share of the DES that the mother could have taken. The court concluded that once this appropriate market had been joined, each manufacturer would be liable for a proportion of the damages equal to its share of the market, unless it could prove that it did not produce the drug that caused the injury.

The district court in the instant cause combined the market theory with the alternative theory of liability that is incorporated into section 433B(3) of the Restatement (Second) of Torts (1965). This theory of alternative liability applies when the actions of two or more tortfeasors combine to [*537] create an injury and it is impossible for the injured party to show which tortfeasor actually caused the injury. Once an injury is established, alternative liability places the burden of proof of apportionment of liability upon each of the tortfeasors, rather than upon the injured party. The theory is applicable, for example, where two tortfeasors fire weapons in the direction of the victim and the victim is injured by one bullet. The victim need only prove that he was injured and that the two tortfeasors fired in his direction. He need not prove which tortfeasor fired the bullet that actually caused his injury. Rather, the burden is upon each tortfeasor to establish that he did not fire the injurious projectile

and, if neither tortfeasor can do so, the tortfeasors are held jointly and severally liable. See Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948).

The district court determined that the modified market share theory would equitably apportion liability in an asbestosis case and held that

the modern rule with respect to market share liability in asbestosis case ... would more logically be reached via section 433B(2) of the Restatement (Second) of Torts (1965), which states as follows:

Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

447 So.2d at 916. The court further held that

in an asbestosis case, each tortfeasor's liability would, just as under the section 433B(3) approach, be apportioned according to his percentage share of the total market.

Id.

Under the theory adopted by the district court, it is assumed that the cumulative exposure to products produced by more than one manufacturer resulted in the injury. When a plaintiff is unable to identify the specific manufacturer of the injurious substance, he may join all manufacturers of the products, and liability will then be apportioned according to each manufacturer's percentage share of the total market output of the injurious substance. An individual manufacturer may, however, refute liability by establishing that the plaintiff was not exposed to its product. The district court did not establish what would constitute a substantial market share and did not identify the boundaries of the relevant geographic market. It concluded that the complaint should not be dismissed for failure to identify the specific product that caused the injury. We find that the market share theory is an inappropriate vehicle with which to apportion liability for the asbestos-related injury in this cause. Our holding is based principally upon the fact that Copeland was able to identify many of the manufacturers of the products to which he was exposed.

The market share theory of liability was developed to provide a remedy where there is an inherent inability to identify the manufacturer of the product that caused the injury. In the present case, Copeland expressly acknowledges that he "can identify several of the products he utilized." Further, during depositions he identified a majority of the petitioners as having supplied the products to which he was exposed. We fully agree with the comments of Judge Nesbitt in his dissent in Celotex that where "the plaintiff is able to identify at least one manufacturer who caused his injury, the reasons for imposing market share liability do not exist." 447 So.2d at 917. We also agree that "this is an inappropriate case in which to determine whether Sindell should be adopted in Florida." Id. at 918.

In addition, it is important to note there are inherent differences between asbestos products and the drug DES, for which the market share theory was developed, which further make the market share theory extremely difficult to apply in asbestos-injury cases. DES was produced by hundreds of companies pursuant to one formula. As [*538] a result, all DES had identical physical properties and chemical compositions and, consequently, all DES prescribed to pregnant women created the same risk of harm to the women's female offspring. See Sindell; see generally Phillips, Asbestos Litigation: The Test of the Tort System, 36 Ark.L.Rev. 344 (1983); Scott, Products Liability, 1982 Ann.Surv. of Am.L. 709, 709-720 (1982); Note, Market Share Liability: An Answer to the DES Causation Problem, 94 Harv.L.Rev. 668 (1981).

Asbestos products, on the other hand, have widely divergent toxicities, with some asbestos products presenting a much greater risk of harm than others. See generally Locks, Asbestos-Related Disease Litigation: Can the Beast Be Tamed?, 28 Vill.L. Rev. 1184 (1982-83); Note, Issues in Asbestos Litigation, 34 Hastings L.J. 871, 889-95 (1983); Comment, An Examination of Recurring Issues in Asbestos Litigation, 46 Alb.L.Rev. 1307, 1325-29 (1982). This divergence is caused by a combination of factors, including: the specific type of asbestos fiber incorporated into the product; the physical properties of the product itself; and the percentage of asbestos used in the product. There are six different asbestos silicates used in industrial applications and each presents a distinct degree of toxicity in accordance with the shape and aerodynamics of the individual fibers. Further, it has been established that the geographical origin of the mineral can affect the substance's harmful effects. A product's toxicity is also related to whether the product is in the form of a solid block or a loosely packed insulating blanket and to the amount of dust a product generates. The product's form determines the ability of the asbestos

fibers to become airborne and, hence, to be inhaled or ingested. The greater the product's susceptibility to produce airborne fibers, the greater the product's potential to produce disease. Finally, those products with high concentrations of asbestos fibers have corresponding high potentials for inducing asbestos-related injuries.

We note that, if we were to adopt the market theory for asbestosis cases, this Court would have to determine what constitutes a "substantial share of the market" which would have to be joined in the cause of action. See Fischer, Products Liability — Analysis of Market Share Liability, 34 Van.L.Rev. 1623 (1981). This would require a determination of what companies produced the injurious products to which a party could have been exposed, when they produced the products, and where they were marketed. Further, as noted above, because the various asbestos products have different toxicities, the courts would have to determine how to apportion liability for the differing harmful effects of the different products. The majority of courts that have addressed this issue have recognized the inherent problems in the approach and have rejected the market share theory as a means of apportioning liability for injuries caused by toxic substances. Those courts have been reluctant to eliminate the traditional tort law requirement of establishing causation and have specifically rejected the application of the market share theory in asbestosis cases. See Thompson v. Johns-Manville Sales Corp., 714 F.2d 581 (5th Cir.1983), cert. denied, ___ U.S. ___, 104 S.Ct. 1598, 80 L.Ed.2d 129 (1984) (asbestos); Burke v. Johns-Manville Corp., No. C-1-289 (S.D. Ohio Aug. 2, 1983) (asbestos); Hannon v. Waterman Steamship Corp., 567 F. Supp. 90 (E.D.La. 1983) (asbestos); In Re Related Asbestos Cases, 543 F. Supp. 1152 (N.D.Cal. 1982) (asbestos); Tidler v. Eli Lilly & Co., 95 F.R.D. 332 (D.D.C. 1982) (DES); Morton v. Abbott Laboratories, 538 F. Supp. 593 (M.D.Fla. 1982) (DES); Starling v. Seaboard Coast Line Railroad, 533 F. Supp. 183 (S.D.Ga. 1982) (asbestos); Prelick v. Johns-Manville Corp., 531 F. Supp. 96 (W.D.Pa. 1982) (asbestos); Mizell v. Eli Lilly & Co., 526 F. Supp. 589 (D.S.C. 1981) (DES); Ryan v. Eli Lilly & Co., 514 F. Supp. 1004 (D.S.C. 1981) (DES); Payton v. Abbott Labs, 386 Mass. 540, 437 N.E.2d 171 (1982) (DES); Zafft v. Eli Lilly & Co., 676 S.W.2d 241 (Mo. 1984) (DES). See also Pipon v. Burroughs-Wellcome Co., 532 F. Supp. 637 (D.N.J.), aff'd, 696 F.2d 984 (3d Cir.1982) (DES). See generally [*539] Special Report: An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vand.L.Rev. 573, 620-25 (1983) (hereinafter Special Report); Comment, An Examination of Recurring Issues in Asbestos Litigation, 46 Alb.L.Rev. 1307, 1325-29 (1982); Comment, Market Share Liability for Defective Products: An Ill-Advised Remedy for the Problem of Identification, 76 Nw.U.L.Rev. 300 (1981); Comment, Market Share Theory and the Asbestos Suits: Should the Industry Bite the Dust?, 14 Stetson L.Rev. 239 (1984). But see Hardy v. Johns-Manville Sales Corp., 509 F. Supp. 1353 (E.D. Tex. 1981), rev'd on other grounds, 681 F.2d 334 (5th Cir.1982) (order allowing use of market share liability was subsequently vacated in Hardy v. Johns-Manville Sales Corp., No. M-79-145-CA (E.D.Tex. Sept. 24, 1982)); Ferrigno v. Eli Lilly & Co., 175 N.J. Super. 551, 420 A.2d 1305 (1980) (DES) (disagreed with by Namm v. Charles E. Frosst & Co., 178 N.J. Super. 19, 427 A.2d 1121 (1981)); Collins v. Eli Lilly & Co., 116 Wis.2d 166, 342 N.W.2d 37, cert. denied, ___ U.S. ___, 105 S.Ct. 107, 83 L.Ed.2d 51 (1984).

While we recognize the clearly established majority view on this issue as expressed in the above holdings, we do not find it necessary to accept or reject the market theory approach; rather, we find that, since Copeland has identified several of the named defendants as having manufactured the products that caused his injury, this case neither requires nor justifies the major policy change necessary to adopt the market share theory in Florida.

Statute of Limitations

In Armstrong the district court held the action was not barred by the statute of limitations. The court found that, in a case where the injury is a "creeping-disease," like asbestosis, the action accrues when the accumulated effects of the substance manifest themselves in a way which supplies some evidence of the causal relationship to the manufactured product. As noted by the district court, Copeland's condition "slowly deteriorated until he retired in April, 1975. At that time he was unable to work due to shortness of breath, a symptom consistent with emphysema." 447 So.2d at 925. The record reflects that Copeland was not diagnosed as having asbestosis until 1978. We agree with the district court that, under these circumstances, when the disease manifested itself was a question of fact not subject to resolution by summary judgment. See Diamond v. E.R. Squibb & Sons, Inc., 397 So.2d 671 (Fla. 1981); Overland Construction Co. v. Sirmons, 369 So.2d 572 (Fla. 1979); Brown v. Armstrong World Industries, 441 So.2d 1098 (Fla. 3d DCA 1983), review denied, 451 So.2d 847 (Fla. 1984); Vilardebo v. Keene Corp., 431 So.2d 620 (Fla. 3d DCA), appeal dismissed, 438 So.2d 831 (Fla. 1983). See also Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); Karjala v. Johns-Manville Products Corp., 523 F.2d 155 (8th Cir.1975); Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076 (5th Cir.1973), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974); Nolan v. Johns-Manville Asbestos & Magnesia Materials Co., 74 Ill. App.3d 778, 30 Ill.Dec. 307, 392 N.E.2d 1352 (1979), aff'd, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981); Louisville Trust Co. v. Johns-Manville

Products Corp., 580 S.W.2d 497 (Ky. 1979); Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Dalton v. Dow Chemical Co., 280 Minn. 147, 158 N.W.2d 580 (1968); Elmore v. Owens-Illinois, Inc., 673 S.W.2d 434 (Mo. 1984); McKee v. Johns-Manville Corp., 94 Misc.2d 327, 404 N.Y.S.2d 814 (1978), cert. denied, 456 U.S. 967, 102 S.Ct. 2226, 72 L.Ed.2d 840 (1982). See generally Special Report at 641-49; Comment, Coping with the Particularized Problems of Toxic Tort Litigation, 28 Vill. L.Rev. 1298, 1314-19 (1982-83). Accordingly, we approve the reasoning of the district court of appeal on this issue.

Conclusion:

For the reasons expressed, we quash the decision of the district court in Copeland v. Celotex Corp. and approve in part and quash in part the decision in Copeland v. [*540] Armstrong Cork Co. We remand these causes to the district court with directions that they be remanded to the trial court to proceed with the trial of these actions in accordance with the views expressed herein. We further direct that Copeland be given an opportunity to file an amended complaint if he so desires. It is so ordered.

BOYD, C.J., and ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

ADKINS, J., concurs in result only.

[1] We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

[2] We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

[3] Copeland identified asbestos products supplied by the following companies: Unarco Industries, Inc.; Johns-Manville Sales Corporation; The Celotex Corporation; Pittsburgh Corning Corporation; Owens-Corning Fiberglas Corporation; Combustion Engineering, Inc.; Eagle-Picher Industries, Inc.; Keene Corporation; Nicolet Industries, Inc.; GAF Corporation; and Armstrong World Industries, Inc.

Sources

• The opinion on Google Scholar
• Florida asbestos laws
• Florida asbestos exposure sites