Hoffman v. AC&S, Inc. (2001)

Our plain-English summary of Hoffman v. AC&S, Inc. (Georgia Court of Appeals, March 14, 2001).

Elaine Hoffman sued 16 makers and suppliers of asbestos products, claiming she developed malignant pleural mesothelioma. She alleged her brothers, Alan and Steven Goldberg, worked at the Savannah Machine & Foundry shipyard in the mid-1960s, brought asbestos dust home on their work clothes, and exposed her. Her husband also claimed loss of consortium. The trial court granted summary judgment to the five remaining defendants. The Court of Appeals dismissed the appeal without prejudice as to two defendants in bankruptcy, because of the automatic stay. It affirmed for the other three: AC&S, Rapid-American and Armstrong World Industries. The brothers could not name any asbestos product or maker they worked with, and they were at the shipyard only one summer. A former supervisor identified some defendants' products used at the yard over the years but could not say when. Finding that those products were present during the Goldbergs' brief stay would be speculation. Her expert's opinion on general asbestos exposure did not tie the brothers to these defendants' products.

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: Georgia Court of Appeals
• Decided: March 14, 2001
• Citation: 548 S.E.2d 379
• Docket: No. A00A2409
• Stage: Appeal from summary judgment
• State: Georgia

Outcome. The Court of Appeals affirmed summary judgment for AC&S, Rapid-American and Armstrong World Industries because Hoffman did not show their products were the ones her brothers were exposed to, and dismissed the appeal without prejudice as to Pittsburgh-Corning and Asbestos Claims Management Company because of their bankruptcies.

What the court held. A plaintiff in an asbestos case must present non-speculative evidence that the defendant's asbestos-containing product was used at the job site while the exposed person was nearby; testimony that a defendant's products were used at the site at some unspecified time during the 1960s is insufficient. An expert's general opinion that workers were exposed to asbestos products does not supply the missing link to a particular defendant.

Issues decided: Asbestos Bankruptcies, Loss of Consortium, Expert Testimony, Product Identification, Take-Home Exposure.

The people and their exposure

• Elaine Hoffman (family member): pleural mesothelioma

Who	Work	Where	When	Products
Elaine Hoffman	carpenters' apprentice (brother Alan Goldberg) (shipyards and maritime work); dust brought home	Savannah Machine & Foundry shipyard, Savannah, Georgia	1965	pipe and block insulation, insulating cement, Armstrong insulation (AC&S, AWI), Armstrong insulating cement, Philip-Carey All-Temp (Rapid-American)
Elaine Hoffman	boilermaker's assistant (brother Steven Goldberg) (shipyards and maritime work); dust brought home	Savannah Machine & Foundry shipyard, Savannah, Georgia	1965 or 1966

The defendants

• AC&S, Inc. (manufacturer)
• Rapid-American Corporation (manufacturer)
• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• Pittsburgh-Corning Corporation (manufacturer) · its asbestos trust
• Asbestos Claims Management Company f/k/a National Gypsum Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Hoffman v. Allied Corp. (U.S. Court of Appeals, Eleventh Circuit, 1990). The Eleventh Circuit reversed summary judgment for Armstrong World Industries and the other defendants and remanded, finding genuine issues of material fact for the Hoffmans' claim.
• 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.
• Lee v. Celotex Corp. (U.S. Court of Appeals, Eleventh Circuit, 1985). The Eleventh Circuit affirmed summary judgment for National Gypsum against Ouida Lee, the widow and executrix, because she did not show that Jack Lee was exposed to an asbestos-containing National Gypsum product.

Later decisions citing this one

13 later decisions in our library cite this one:

• Thurmon v. Georgia Pacific, LLC (U.S. Court of Appeals, Eleventh Circuit, 2016). The Eleventh Circuit affirmed summary judgment for Crane Co. against the Thurmon estate and his children, because they offered no evidence that a Crane Co. product caused his mesothelioma.
• Sinyard v. Georgia Power Company (Georgia Court of Appeals, 2022). The court affirmed summary judgment for Georgia Power only as to work on the new Units at Plants Scherer and Vogtle, reversed it on the remaining Georgia Power claims and in full for Ford, and affirmed summary judgment for Piedmont Hospital.
• Georgia Power Company v. Campbell (Georgia Court of Appeals, 2021). The Court of Appeals affirmed the denial of summary judgment on Georgia Power's duty to Campbell and the admission of Dr. Brody's testimony, but vacated the orders admitting Dr. Holstein's testimony and on the statute of repose, and remanded for further proceedings.
• Davis v. John Crane, Inc. (Georgia Court of Appeals, 2019). The court reversed summary judgment for John Crane, Inc. on product identification, and affirmed summary judgment for FMC Corporation on the negligent design and failure-to-warn claims over third-party replacement parts.
• Union Carbide Corporation v. Fields (Georgia Court of Appeals, 2012). The Georgia Court of Appeals affirmed the grant of partial summary judgment to the Fieldses on the defendants' nonparty-fault defense and affirmed the denial of Union Carbide's summary judgment motion, so the Fieldses won both rulings and the defendants lost.
• Butler v. Union Carbide Corporation (Georgia Court of Appeals, 2011). The Georgia Court of Appeals affirmed the trial court's exclusion of Dr. Maddox's specific causation testimony and its grant of summary judgment to Union Carbide, so Mrs. Butler lost.
• Adamson v. General Elec. Co. (Georgia Court of Appeals, 2010). The Georgia Court of Appeals affirmed summary judgment for FMC (workers' compensation exclusive remedy) and for Chesterton, Garlock, CBS/Westinghouse, General Electric and Union Carbide (no proof of exposure to their asbestos products), against the estate's executor.
• Williams v. Flintkote Co. (Georgia Court of Appeals, 2002). The Georgia Court of Appeals affirmed summary judgment for Flintkote against Joyce and Carlton Williams, and dismissed the appeal as to GAF without prejudice because of GAF's bankruptcy stay.
• Pruitt v. Deere & Co. (In re Asbestos Litigation) (U.S. District Court, District of Delaware, 2020). The magistrate judge recommended granting summary judgment for Taco, Terex and Trane, and partial summary judgment for Deere, against plaintiff John Pruitt, who did not oppose the motions.
• Pruitt v. Amdura (In re Asbestos Litigation) (U.S. District Court, District of Delaware, 2020). The magistrate judge recommended granting summary judgment for Amdura and BorgWarner Morse TEC, and denying summary judgment for Gardner Denver and Warren Pumps, in John Pruitt's mesothelioma suit.
• Farmer v. Air and Liquid Systems Corporation (U.S. District Court, Middle District of Georgia, 2018). The court granted summary judgment to Fisher Controls and Honeywell because the plaintiff did not show Mr. Farmer was exposed to asbestos from their products, and denied McWane's motion because it could be liable as a successor under a post-sale failure-to-warn theory.
• Hanson v. Colgate-Palmolive Company (U.S. District Court, Southern District of Georgia, 2018). The district court granted Colgate-Palmolive's motions for summary judgment and partial summary judgment on punitive damages, entering judgment against Douglas Hanson on all claims because he had no evidence that his late wife was exposed to asbestos in Cashmere Bouquet talc, or at what level.
• Thurmon v. AW Chesterton, Inc. (U.S. District Court, Northern District of Georgia, 2014). The district court granted Crane Co.'s re-filed motion for summary judgment on claims about Crane valves, ruling against the plaintiffs, and directed the clerk to close the case.

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.

548 S.E.2d 379 (2001)

248 Ga. App. 608

HOFFMAN, etal.

v.

AC&S, INC. etal.

No. A00A2409.

March 14, 2001.

Court of Appeals of Georgia.

[*380] Middleton, Mathis, Adams & Tate, Charles A. Mathis, Jr., Atlanta, Douglas P. McManamy, Leslie S. Pickett, Savannah, for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, Ivan A. Gustafson, Christopher G. Conley, Athens, Hawkins & Parnell, Michael J. Crist, Drew, Eckl & Farnham, Jeffrey A, Burmeister, Stevan A. Miller, Atlanta, for appellees. RUFFIN, Judge.

Elaine Hoffman filed suit against 16 manufacturers and/or suppliers of asbestos-containing products, alleging that she contracted malignant pleural mesothelioma[1] as a result [*381] of exposure to defendants' products.[2] She asserted claims of both negligence and strict liability. After dismissing Hoffman's claims against eleven of the defendants, the trial court granted summary judgment in favor of the remaining five defendants: Pittsburgh-Corning Corporation; AC&S, Inc.; Rapid-American Corporation; Asbestos Claims Management Company f/k/a National Gypsum Company; and Armstrong World Industries, Inc. ("AWI"). Hoffman appeals the grant of summary judgment. We dismiss the appeal as to two defendants that have sought bankruptcy protection, and we affirm the grant of summary judgment to the remaining three defendants because Hoffman failed to present evidence identifying their products as the ones to which she was exposed. 1. Since the decision of the trial court, it appears that defendants Pittsburgh-Corning Corporation and Asbestos Claims Management Company have sought relief under Chapter 11 of the Bankruptcy Code. Further proceedings against Pittsburgh-Corning Corporation and Asbestos Claims Management Company are therefore stayed by operation of 11 USC § 362, and this appeal is dismissed without prejudice as to those parties. Hoffman may file a new notice of appeal as to those parties within 30 days of the lifting of the bankruptcy stays.[3]

2. We now address Hoffman's appeal as it relates to the three remaining defendants in the case—AC&S, Rapid-American, and AWI.

Hoffman's theory of liability is that during the mid-1960s, her brothers, Alan and Steven Goldberg, "worked around [defendants'] asbestos products, carried home the asbestos dust and fibers on their work clothes, and exposed [her] to the asbestos dust and fibers," causing her to contract mesothelioma some 30 years later. Alan Goldberg testified that he worked at the Savannah Machine & Foundry shipyard from June to August 1965. During that time, he lived at home with his parents, his younger brother, and Hoffman. Alan stated that the shipyard was filled with dust "created by the grinding, sanding, welding and cutting processes" performed there and that this dust covered his clothes and body. He further stated that, when he came home from work, he would often greet Hoffman with a hug and a kiss while still wearing his work clothes. Alan removed his dirty clothes and sometimes shook off the dust in the bathroom, which was also used by Hoffman. His mother washed the dirty work clothes together with the rest of the family's laundry.

Alan testified that during his first month at the shipyard, he worked as a welder's apprentice and did not work with any asbestos products. During his second and third month at the shipyard, he served as a carpenters' apprentice. Although Alan stated that he worked with asbestos products during that period, he could not recall the name of any particular product and could not identify with certainty any particular manufacturer.[4] Steven Goldberg testified that he worked at the shipyard as a boilermaker's assistant for one summer in either 1965 or 1966 and that his primary duty was to carry water to workers in the ship's hold. He stated that he did not know whether he worked with or around any products containing asbestos.

Van Allen Lovell testified that he worked at the shipyard as a welder and boilermaker from 1951 to approximately 1983. Lovell remembered working around the boilers with the Goldberg brothers, but he could not recall when or how long the Goldbergs were there. According to Lovell, most of the products used around the boilers contained asbestos because " [t]hat's the only thing that could stop that fire from eating that steel up." He stated that a "slew" of asbestos products "from different companies" were in use at the shipyard. Lovell testified, however, [*382] that he "can't say what kind of products we [were] using," and he later noted that he "[paid] no attention to that." Likewise, Lovell was unable to state whether the Goldberg brothers ever worked with any particular asbestos product or brand.

Roy Graddick testified that he worked as a boilermaker at the shipyard from 1956 to 1983 and that he supervised Lovell. Graddick did not recall the Goldbergs, but he did remember Lovell. Graddick stated that he began ordering asbestos products for the shipyard in 1961 or 1962. Although Graddick identified a number of different asbestos products that were used at the shipyard, including many that were manufactured by the defendants in this case, he could not state that any particular employee worked with any particular product. Moreover, although Graddick presumed that Lovell must have been in the vicinity of various specific asbestos products at some point during his career, Graddick could not state that Lovell worked with any particular product at any particular time.

The defendants sought summary judgment on the ground that Hoffman failed to present sufficient evidence that the asbestos products to which her brothers allegedly were exposed were defendants' products. Summary judgment is proper when "there is no genuine issue as to any material fact and... the moving party is entitled to a judgment as a matter of law." [5] To win summary judgment, "a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff's claim."[6] Although the plaintiff is entitled to the benefit of all reasonable inferences to be drawn from the evidence, such inferences "cannot be based on mere conjecture or possibility or upon evidence which is too uncertain or speculative."[7] We review a grant of summary judgment de novo.[8] To survive summary judgment, Hoffman clearly needed to present evidence that she was exposed to defendants' products. Under Georgia law, "[w]hether proceeding under a strict liability or a negligence theory, `proximate cause' is a necessary element of [a product liability] case."[9] We have held that

[u]nless the manufacturer's defective product can be shown to be the proximate cause of the injuries there can be no recovery. A manufacturer has the absolute right to have his strict liability for injuries adjudged on the basis of the design of his own marketed product and not that of someone else.[10]

Thus, Hoffman needed to establish that the product or products that allegedly caused her mesothelioma were, in fact, manufactured or supplied by the defendants in this case.[11]

Federal courts applying Georgia law in asbestos cases have held that "the threshold for every theory is proof that an injured plaintiff was exposed to asbestos-containing products for which the defendant is responsible."[12] That is, the plaintiff must present evidence "that a particular defendant's asbestos-containing product was used at the job site and that the plaintiff was in proximity to that product at the time it was being used."[13] Such evidence may include "[t]estimony of co-workers who can identify a [*383] plaintiff by name as having worked with or around a particular defendant's asbestos-containing products."[14] A plaintiff may either (1) identify by name an employee with whom he worked and submit an affidavit from that employee stating that he used the defendant's asbestos-containing products, or (2) submit an affidavit from a co-worker identifying the plaintiff by name as working in the same vicinity with him and stating that he (the co-worker) used the defendant's asbestos-containing products.[15]

Hoffman attempts the second method of proof. Lovell, a former employee at the shipyard, remembered working with the Goldberg brothers, but could not identify any particular asbestos products to which they might have been exposed. Graddick, another former employee, did not remember the Goldbergs, but he did identify a number of specific asbestos products—and their manufacturers—that were used at the shipyard over the years.

The problem, however, is that Graddick was unable to testify that any particular product manufactured by the defendants was used at the shipyard while the Goldbergs were there. It is undisputed that the Goldbergs worked at the shipyard only for a brief period of time—the summer of 1965 or 1966. At a minimum, Hoffman needed to present evidence that the defendants' products were present in the shipyard during that brief period. But Graddick could not provide such evidence.

For the purpose of this appeal, defendants AC&S and AWI are associated with asbestos-containing insulation products bearing the name "Armstrong."[16] Graddick testified that he remembered Armstrong brand insulation being used at the shipyard, but he could not remember what kind of insulation it was or when it was used. He further testified that he believed he saw Armstrong insulating cement at the shipyard "in the sixties," but he refused to commit to any specific year. To infer from this testimony that Armstrong asbestos products were used at the shipyard during the three-month span of the summer of 1965 or 1966 would be sheer speculation. "Guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment."[17] Thus, Graddick's testimony fails to create an issue of fact as to the Goldbergs' alleged exposure to products associated with defendants AC & S and AWI. The same is true for defendant Rapid-American. For the purpose of this appeal, Rapid-American accepts responsibility for products manufactured by Philip-Carey. Graddick remembered only one such product—Philip-Carey "All-Temp" insulating material. When asked whether this product contained asbestos, Graddick replied, "I don't know." Graddick further stated that he did not know where within the shipyard the product was used or when it was used. In fact, Graddick could not even say that All-Temp was used during the 1960s. Thus, there is no evidence tying the Goldbergs to any products associated with Rapid-American.

3. Hoffman contends that the unrebutted affidavit of her expert witness, Dr. Martin Cherniack, constitutes evidence that her brothers were exposed to defendants' asbestos-containing products. We disagree.

According to his affidavit, Dr. Cherniack was retained "to render an opinion on whether or not Elaine Hoffman's malignant pleural mesothelioma was causally related to exposure [*384] to asbestos fibers"—not to ascertain whose asbestos fibers were the source of exposure. After studying the depositions of Hoffman, the Goldbergs, Graddick, and Lovell, as well as Hoffman's medical records, Dr. Cherniack concluded that Hoffman's brothers were exposed to products containing asbestos during their employment at the shipyard, that fibers from those products clung to their clothing, and that Hoffman came into contact with the fibers as a result of living in the same household as her brothers. Dr. Cherniack noted that "boilermaker and welder/carpenter helpers in the 1960s were routinely exposed to a significant number of asbestos containing products" and that Graddick and Lovell "identified numerous asbestos containing products, including but not limited to" some of the products manufactured by defendants. But Dr. Cherniack did not state that Hoffman's brothers were exposed to defendants' products, nor would he have had any basis for so stating.

As explained above, there simply is no evidence linking Hoffman's brothers to defendants' products. Hoffman's attempt to establish such a link based on conjecture and speculation fails. Accordingly, the trial court properly granted summary judgment to defendants.

Summary judgment in favor of appellees AC&S, Inc., Rapid American Corporation, and Armstrong World Industries, Inc. affirmed. Appeal of judgment relating to appellees Pittsburgh-Corning Corporation and Asbestos Claims Management Company dismissed with instructions.

Judgment affirmed in part and appeal dismissed in part.

ANDREWS, P.J., and ELLINGTON, J., concur.

[1] Malignant pleural mesothelioma is a cancer of the lining of the lungs.

[2] Hoffman's husband also filed a claim for loss of consortium.

[3] See Wade v. First Union Nat. Bank, 231 Ga. App. 879, 498 S.E.2d 372 (1998); DCA Architects v. American Bldg. Consultants, 203 Ga.App. 598, 599-600(1), 417 S.E.2d 386 (1992).

[4] Alan did testify that he "believed" one of the products he used was manufactured by Johns Manville, which is not a defendant in this case. In his affidavit, however, Alan said he was "unable to identify any asbestos containing product by brand name." [5] OCGA § 9-11-56(c).

[6] Clark v. Joiner, 242 Ga.App. 421, 530 S.E.2d 45 (2000).

[7] Wender & Roberts, Inc. v. Wender, 238 Ga.App. 355, 356, 518 S.E.2d 154 (1999).

[8] Clark, supra.

[9] Talley v. City Tank Corp., 158 Ga.App. 130, 134(3), 279 S.E.2d 264 (1981).

[10] (Emphasis omitted.) Id. at 135, 279 S.E.2d 264.

[11] See Davis v. Wells Aluminum Southeast, 172 Ga.App. 357, 323 S.E.2d 215 (1984) (affirming grant of summary judgment where plaintiff failed to present evidence that allegedly defective aluminum strip was manufactured by defendant).

[12] Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.1985). See also Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.1990); Odum v. Celotex Corp., 764 F.2d 1486, 1488 (11th Cir.1985); Lee v. Celotex Corp., 764 F.2d 1489, 1490 (11th Cir.1985); Lowie v. Raymark Indus., 676 F.Supp. 1214, 1216 (S.D.Ga.1987).

[13] Odum, supra.

[14] Id.

[15] See Blackston, supra at 1482.

[16] According to an affidavit submitted by an employee of AWI, AWI manufactured and distributed asbestos-containing block insulation and insulating cement under the name "Armstrong" up until 1958, and it manufactured and distributed Armstrong-brand asbestos-containing pipe insulation through 1959. Thereafter, AWI licensed the use of its trademark to AC&S, which used the name "Armstrong" on pipe covering, block insulation, and cements that it sold in the 1960s. For the purpose of this appeal, AC&S accepts responsibility for asbestos-containing insulation bearing the "Armstrong" name which may have been present at the shipyard in the 1960s. AWI denies such responsibility.

[17] (Punctuation omitted.) John Hewell Trucking Co. v. Brock, 239 Ga.App. 862, 864, 522 S.E.2d 270 (1999).

Sources

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