Hoffman v. Allied Corp. (1990)

Our plain-English summary of Hoffman v. Allied Corp. (U.S. Court of Appeals, Eleventh Circuit, September 26, 1990).

Milton Hoffman and his wife Lillian sued Armstrong World Industries and other asbestos product makers in federal court in Florida. Milton was diagnosed with pleural malignant mesothelioma. During World War II he spent about 14 months as a lathe operator in the ordnance repair shop at the Brooklyn Naval Shipyard. No asbestos products were used inside the shop, but Armstrong's thermal insulation was used on ships in the dry dock, 300 to 400 feet away. The Hoffmans submitted affidavits saying that wind blew asbestos dust from the dry dock through the shop's open windows and that insulators and other workers came into the shop covered in dust. An epidemiologist said the insulation dust was a substantial cause of the disease. The district court granted summary judgment to the defendants because the products were not in Hoffman's close work area. The Eleventh Circuit reversed. It held that a reasonable jury could find Hoffman was exposed to and injured by Armstrong's products, and sent the case back for further proceedings. The conspiracy claim had not been decided and could also go forward.

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: U.S. Court of Appeals, Eleventh Circuit
• Decided: September 26, 1990
• Citation: 912 F.2d 1379
• Docket: No. 89-5764
• Stage: Appeal from summary judgment

Outcome. 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.

What the court held. Under the summary judgment standard, affidavits that asbestos products were in use 300 to 400 feet away, that dust drifted into the shop, and that asbestos was the substantial cause of the disease allowed a reasonable jury to find exposure to the defendant's products and proximate cause.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Milton Hoffman: pleural mesothelioma; died

Who	Work	Where	When	Products
Milton Hoffman	lathe operator in the ordnance repair shop (shipyards and maritime work); worked near others using it	Brooklyn Naval Shipyard, Brooklyn, New York	World War II, approximately 14 months	pipe and block insulation, Armstrong World Industries thermal insulation

The defendants

• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• Fibreboard Corp. (manufacturer) · its asbestos trust
• GAF Corp. (manufacturer) · its asbestos trust
• H.K. Porter Co., Inc. (manufacturer)
• Keene Corp. (manufacturer)
• Owens-Illinois, Inc. (manufacturer) · its asbestos trust
• Raymark Industries, Inc. (manufacturer)
• Southern Textile Corp. (manufacturer)
• Turner & Newall, Limited (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

Later decisions citing this one

14 later decisions in our library cite this one:

• John Crane, Inc. v. Jones (Georgia Supreme Court, 2004). The Georgia Supreme Court affirmed the Court of Appeals, upholding the $1,975,000 verdict for Laila Jones against John Crane, Inc. and the trial court's refusal to give a "substantial contributing factor" jury charge.
• Smith v. Carlisle Industrial Brake & Friction, Inc. (Florida District Court of Appeal, 1st District, 2023). The First District Court of Appeal reversed the summary judgment that the trial court had granted to Carlisle Industrial Brake & Friction and remanded, ruling for the estate of Joan Smith.
• Morin v. AutoZone Northeast, Inc. (Massachusetts Appeals Court, 2010). The Appeals Court reversed summary judgment for AutoZone and Orleans Auto Supply, so the estate's claims against them go forward, and affirmed summary judgment for Great Dane.
• Hoffman v. AC&S, Inc. (Georgia Court of Appeals, 2001). 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.
• North American Refractory Co. v. Easter (Texas Court of Appeals, 13th District, 1999). The court of appeals affirmed the jury verdict and judgment for Moss's estate, Easter, Roberts and the two spouses against North American Refractory Co. (NARCO), including the $1.5 million punitive award.
• Lineaweaver v. Plant Insulation Co. (California Court of Appeal, 1st Appellate District, 1st Division, 1995). The Court of Appeal reversed the nonsuit for Plant Insulation as to Lineaweaver and remanded for retrial, but affirmed the nonsuit against King and Ward for insufficient evidence of exposure to Plant-supplied Pabco.
• Wehmeier v. Unr Industries, Inc. (Illinois Appellate Court, 4th District, 1991). The appellate court reversed all the judgments, both those for plaintiffs Wehmeier, Bratcher, Schultz and Cochran and those for the Fund against Gray and Tynan, and remanded for a new trial.
• Israel v. John Crane, Inc. (U.S. District Court, Middle District of Florida, 2022). The court granted John Crane's motion for summary judgment, holding Norman Israel's maritime-law lung cancer claims time-barred because he knew or should have known of the cause by December 21, 2016.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The district court denied John Crane, Inc.'s motion for summary judgment, so the estate's claims against John Crane went forward.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The court granted defendant Albany International Corporation's motion for summary judgment and dismissed the estate of Rueben Morgan's claims against Albany with prejudice, finding the 1972-74 exposure claims time-barred and no evidence of post-1979 exposure to Albany products.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The court granted General Electric's motion for summary judgment and dismissed the plaintiff's claims against GE with prejudice, finding the pre-1979 exposure claims time-barred and no sufficient evidence of later exposure to GE products.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The court granted Warren Pumps, LLC's motion for summary judgment and dismissed the estate's claims against Warren with prejudice, so Warren won and the plaintiff lost.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The court granted Honeywell International's motion for summary judgment and dismissed the plaintiff's claims against it with prejudice, because the 1956-1958 exposures were time-barred and there was no evidence of post-1979 exposure to Bendix products.
• Morgan v. Bill Vann Company, Inc. (U.S. District Court, Southern District of Alabama, 2013). The court granted CBS Corporation (successor to Westinghouse) summary judgment, dismissing the estate's claims against it with prejudice, because pre-May 1979 exposures were time-barred and no admissible evidence showed later exposure to Westinghouse asbestos products.

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.

912 F.2d 1379 (1990)

Dr. Steven HOFFMAN, as Personal Representative of the Estate of Milton Hoffman and Lillian

Hoffman, Plaintiffs-Appellants,

v.

ALLIED CORP., etal, Defendants,

Armstrong World Industries, Inc., Fibreboard Corp., GAF Corp., H.K. Porter Co., Inc., Keene Corp.,

Owens-Illinois, Inc., Raymark Industries, Inc., Southern Textile Corp., Turner & Newall, Limited,

Defendants-Appellees.

No. 89-5764.

September 26, 1990.

United States Court of Appeals, Eleventh Circuit.

[*1380] Reed A. Bryan, McCune, Hiaasen, Crum, Gardner & Duke, Fort Lauderdale, Fla., for plaintiffs-appellants. Gregory H. Maxwell, Zisser, Robison, Spohrer, Wilner & Harris, Jacksonville, Fla., for Armstrong, etal. Fortson & White, Atlanta, Ga., for H.K. Porter and Southern Textile.

Tracy E. Tomlin, Stinson, Lyons, Gerlin & Bustamante, Miami, Fla., for Owens-Illinois, Inc. and Fibreboard Corp. Before TJOFLAT, Chief Judge, FAY, Circuit Judge, and HOFFMAN[*], Senior District Judge.

FAY, Circuit Judge:

This case concerns a personal injury claim for damages arising out of an alleged incidental exposure to asbestos products over 40 years ago. Finding that plaintiffs-appellants Milton and Lillian Hoffman could not prove that Milton Hoffman either worked with or in close proximity to products manufactured by defendants-appellees Armstrong World Industries, etal. ("Armstrong"), and therefore failed to raise a genuine issue of material fact, the district court granted summary judgment for Armstrong. The Hoffmans appeal. Because we have determined that genuine issues of material fact exist, we reverse and remand for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Milton Hoffman[1] and his wife, Lillian, are both Florida residents. Milton Hoffman worked as a lathe operator in the Brooklyn (N.Y.) Naval Shipyard's ordnance repair shop[2] for approximately 14 months during World War II. The Brooklyn Naval Shipyard was a large, waterfront facility where warships were overhauled during the war. The facility contained many buildings, as well as a dry dock. Milton Hoffman worked in Building 5, where the ordnance repair shop was located. The dry dock was near the water's edge, approximately 300 to 400 feet from Building 5.

Armstrong manufactured asbestos products, primarily thermal insulation, that were in use when Milton Hoffman worked at the shipyard. Further, Armstrong concedes that these products were in use at the time in various locations within the shipyard, especially on ships being repaired at the dry dock. Both parties agree, however, that no asbestos products were used within the ordnance repair shop itself.

[*1381] Leo Rapacilo was an electrician who worked in close proximity to asbestos products on the ships in dry dock at the shipyard. In addition to working on the ships, he also occasionally worked in the ordnance repair shop in Building 5. (R 7-178, Rapacilo Affidavit). According to Rapacilo, the asbestos products used at the dry dock in their ordinary use created considerable dust in the air, and it was not unusual for dust to cover his clothing, hair, and exposed skin, even though he did not work directly with the insulation products. (R 7-178, Rapacilo Affidavit).

Milton Hoffman stated in an affidavit that the only method to ventilate the ordnance repair shop was to open its windows. (R 7-178, Hoffman Affidavit). These windows remained open during a substantial portion of the year, and dust could blow into the shop through the windows. (R 7-178, Hoffman Affidavit). The prevailing winds blew from the water's edge across the dry dock into the ordnance repair shop. (R 7-178, Hoffman Affidavit). Mr. Hoffman claimed that the breezes carried asbestos dust from the ships at the dry dock into the shop where he worked. (R 7-178, Hoffman Affidavit). Further, insulators and other shipyard workers, like Mr. Rapacilo, occasionally came into or worked in the ordnance repair shop, and they were sometimes covered with dust. (R 7-178, Hoffman Affidavit).

In 1983, a biopsy was performed on part of Milton Hoffman's lung. A pathologist at Mt. Sinai Medical Center in Miami Beach diagnosed him as suffering from pleural malignant mesothelioma.[3] In April of 1987, Dr. Mario Saldana also diagnosed Mr. Hoffman's condition as malignant mesothelioma.

In an affidavit filed by Armstrong, Dr. John Legowik admitted that the only known cause of mesothelioma is asbestos exposure, although he did not rule out the possibility of other causes. (R 3-73, Legowik Affidavit (emphasis in original)). Dr. Saldana, in his affidavit, opined that mesothelioma could result from very minuscule or minor exposures to asbestos dust, unlike asbestosis or other asbestos related diseases which require more substantial exposure. Both Dr. Legowik and Dr. Saldana agreed that in 85 percent of all documented mesothelioma cases the patients had been exposed to asbestos. In the other 15 percent of mesothelioma cases in which no direct history of asbestos exposure existed, Dr. Saldana attributed the cause to the very light exposure required to produce the disease. In his opinion, most, if not all, of those cases were caused by asbestos exposure despite the lack of available reliable history of asbestos exposure. Dr. Legowik refused to attribute mesothelioma to asbestos exposure, absent a finding of asbestos bodies in the patient's lung tissue by open lung biopsies or autopsy biopsy.[4] However, the Hoffmans opposed an autopsy upon Mr. Hoffman's death for religious reasons. Further, Dr. Saldana stated that an autopsy was unnecessary to determine whether mesothelioma was caused by asbestos exposure.[5]

On March 30, 1987, the Hoffmans filed suit in federal district court for the Southern District of Florida. The complaint sounded in negligence, warranty, and strict liability, and also charged Armstrong with conspiracy to conceal information regarding the dangerous nature of asbestos. On July 14, 1988, upon motion for summary judgment by Armstrong, the district court referred the matter to the United States Magistrate for consideration. The Magistrate recommended that the district court grant the summary judgment based upon the discovery materials available at the time.[6] According to the Magistrate, nothing in the record could prove that Armstrong's [*1382] products were being used in Milton Hoffman's "work area." (R 7-162). Following the Magistrate's report and recommendation, the district court gave the Hoffmans an opportunity to supplement the record by filing affidavits to avoid final summary judgment.

In addition to the affidavits of Leo Rapacilo and Milton Hoffman noted above, the Hoffmans offered an affidavit by Dr. Joseph Wagoner. Dr. Wagoner, an epidemiology expert, opined that:

asbestos was the substantial causal factor in the induction of Milton Hoffman's malignant mesothelioma of the pleura. The dusts and fibers from defendants' products which have been identified and shown to have been in general use in the shipyard during the time of Mr. Hoffman's tenure there are the substantial causal factors of his said disease. ... [T]he use of asbestos materials in shipyards releases asbestos dust into the air which typically hangs in the air and permeates the air throughout the work area, including areas removed from its point of release so that persons working in adjacent areas near the point source of asbestos dust could inhale asbestos fibers. Once released into the air, asbestos fibers drift with air currents thus spreading over time throughout a large area. Asbestos dust and fibers remain floating in the air once released and individuals not working directly with asbestos products are at risk of becoming diseased.

... [N]umerous articles and studies [have shown] the development of pleural mesothelioma among individuals ... living up to at least a half mile away from a given point source of asbestos dust and who have no direct contact with asbestos products.

(R 7-168, Wagoner Affidavit (emphasis added)).

Nevertheless, the district court granted summary final judgment.[7] The trial court determined that the Hoffmans' new affidavits still failed to show Armstrong's products in use in Milton Hoffman's "work area." The judge concluded that Milton Hoffman's "work area" was limited to only a "close proximity" surrounding Mr. Hoffman, and did not include the dry docks

only 300 to 400 feet away.[8] As a result, the court rejected the Hoffmans' argument that Milton Hoffman was exposed to asbestos from workers passing through the ordnance repair shop or by asbestos dust blowing into the shop from the dry dock. Because Mr. Hoffman did not work in "close proximity" to Armstrong's asbestos products, the court believed the Hoffmans' evidence only raised a mere possibility that Milton Hoffman was exposed to Armstrong's asbestos products. See Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.1985).

ANALYSIS

Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Once a party properly makes a summary judgment motion by demonstrating to the district court the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must "go beyond the pleadings and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions [*1383] on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(e)); Bannum, Inc. v. City of Ft. Lauderdale, 901 F.2d 989, 996 (11th Cir.1990). An appellate court's review of a district court's grant of summary judgment is plenary, and we apply the same legal standards as those used in the district court. Bannum, 901 F.2d at 996; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989); Livernois v. Medical Disposables, Inc., 837 F.2d 1018, 1021-22 (11th Cir.1988). The standard for summary judgment mirrors the standard for a directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). "[I]f the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party," summary judgment is inappropriate. Id. at 248, 106 S.Ct. at 2510. "[T]he substantive law will identify which facts are material"; the district court "must view the evidence presented through the prism of the substantive evidentiary burden." Id. at 248, 254, 106 S.Ct. at 2513. The court must view all evidence most favorably toward the nonmoving party, and all justifiable inferences are to be drawn in the nonmoving party's favor. Id. at 255, 106 S.Ct. at 2513-14; Bannum, 901 F.2d at 996; Livernois, 837 F.2d at 1022. If, so viewed, reasonable jurors could find a verdict for the nonmoving party under the substantive evidentiary standard, the nonmoving party can defeat summary judgment. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512; Cable/Home Communication v. Network Productions, 902 F.2d 829, 841 (11th Cir.1990); Carlin Communication, Inc. v. Southern Bell Tel. & Tel., 802 F.2d 1352, 1356 (11th Cir.1986).

The key issue in this case is not whether there should be a presumption of causation if a plaintiff merely shows that asbestos products manufactured by the defendant were in use at a particular job site. Instead, the issue is whether a reasonable jury could conclude in this case by a preponderance of the evidence presented, that Mr. Hoffman was exposed to Armstrong's asbestos products, and that the exposure was a proximate cause of his injury.

Neither party disputes that Armstrong's products were in use 300 to 400 feet away from Milton Hoffman. The Hoffmans have offered affidavits to prove, and Armstrong has not contested, that the only known cause of mesothelioma is asbestos exposure. The Hoffmans have also offered an affidavit from an expert who has made an opinion as to the ultimate issue in the case: that Armstrong's products were the substantial causal factors of Milton Hoffman's disease. Although we make no opinion as to the weight which should be given to such evidence by the fact finder, we cannot agree with the district court's determination that no genuine issue of material fact exists for trial. Instead, we believe a reasonable jury could conclude that Milton Hoffman was exposed to and injured by Armstrong's products. The Hoffmans have raised sufficient evidence to show that a genuine issue of material fact exists.

Accordingly, we REVERSE the district court's granting of summary judgment to Armstrong and REMAND this case for further proceedings consistent with this opinion.

[*] Honorable Walter E. Hoffman, Senior U.S. District Judge for the Eastern District of Virginia, sitting by designation. [1] Milton Hoffman is recently deceased; his son, as personal representative of his estate has been substituted in his place. [2] Artillery guns used on naval vessels were repaired in the ordnance repair shop; Mr. Hoffman's duties consisted mainly of machining parts for ships' guns.

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

[4] Apparently, the biopsy upon which Dr. Saldana based his diagnosis did not contain any asbestos bodies. [5] "[E]ven if an autopsy were done and no asbestos bodies were found, such a result would not provide an adequate predicate for any responsible medical opinion that the mesothelioma I diagnosed was unrelated to Mr. Hoffman's asbestos exposure." (R 3-67, Saldana Affidavit).

[6] The Magistrate's Report and Recommendation was issued prior to the submission of affidavits by Leo Rapacilo and Milton Hoffman which claimed that asbestos dust entered the ordnance repair shop either carried by the wind through the windows or on the clothing and bodies of dry dock workers walking through the shop.

[7] The district court's order granting summary judgment did not reach the conspiracy claim. Therefore, the Hoffmans may litigate the conspiracy claim as well as the personal injury claim.

[8] The trial court applied this court's decision in Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985), a case applying Georgia law. Blackston rejected creating a judicial presumption of exposure throughout a work site when a plaintiff is unable to establish exposure to an identifiable defendant's asbestos product, and instead held that a plaintiff must show asbestos products were used in "close proximity" to him. Id. at 1481.

Sources

• The opinion on Google Scholar