Marshall v. Celotex Corp. (E.D. Mich., Feb. 17, 1987)

Our plain-English summary of Marshall v. Celotex Corp. (U.S. District Court, Eastern District of Michigan, February 17, 1987).

Deborah Marshall, personal representative of the estate of Frederick Marshall, Jr., sued a group of asbestos product manufacturers. She claimed he contracted mesothelioma and died from exposure to asbestos-containing products. The opinion does not describe where or how he was exposed. She conceded she could not identify which products he was exposed to. She argued instead that the defendants had worked together to suppress information about asbestos risks, which she said made product identification unnecessary. The defendants moved for summary judgment. The court called the causation question difficult. It noted that without an identification requirement each manufacturer would effectively insure all the others, but also that justice calls for a remedy if manufacturers conspired to conceal a risk that then caused injury. The court declined to reject the concert-of-action theory at this stage and denied the motion. It warned that her burden would be heavy: she must prove both concerted activity and proximate cause. It said it would reconsider the issue on a motion for directed verdict at the close of her case.

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. District Court, Eastern District of Michigan
• Decided: February 17, 1987
• Citation: 652 F.Supp. 1581
• Stage: Summary judgment
• State: Michigan

Outcome. The court denied the defendant asbestos manufacturers' motion for summary judgment, allowing the plaintiff's concert-of-action theory to go to trial.

What the court held. A plaintiff who cannot identify the specific product that caused the injury may still pursue a concert-of-action theory, and the court will not reject it at summary judgment. She must prove cause in fact through concerted activity and also proximate cause.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Product Identification.

The people and their exposure

• Frederick A. Marshall, Jr.: mesothelioma; died

The defendants

• The Celotex Corporation (manufacturer) · its asbestos trust
• Eagle-Picher Industries, Inc. (manufacturer) · its asbestos trust
• Armstrong World Industries, Inc. (manufacturer) · its asbestos trust
• Raymark Industries, Inc. (manufacturer)
• H.K. Porter Company, Inc. (manufacturer)
• GAF Corporation (manufacturer) · its asbestos trust
• Fibreboard Corporation (manufacturer) · its asbestos trust
• Keene Corporation (manufacturer)
• Pittsburg Corning Corporation (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Marshall v. Celotex Corp. (January 14, 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.
• Marshall v. Celotex Corp. (May 12, 1987). The district court stayed the case and certified to the Michigan Supreme Court the question of whether a plaintiff proceeding on a concert of action theory must show that at least one tortious defendant actually supplied asbestos to the decedent's workplace, without deciding the final outcome between Marshall's estate and the defendants.
• Marshall v. Celotex Corp. (August 18, 1988). The court granted the remaining defendants' (Celotex, Fibreboard, Keene, Pittsburg Corning) renewed motion for judgment, ruling that plaintiff Deborah Marshall could not proceed on a concert of action theory without showing any defendant supplied asbestos products to the naval station.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

Later decisions citing this one

One later decision in our library cites this one:

• Marshall v. Celotex Corp. (U.S. District Court, Eastern District of Michigan, 1987). The district court stayed the case and certified to the Michigan Supreme Court the question of whether a plaintiff proceeding on a concert of action theory must show that at least one tortious defendant actually supplied asbestos to the decedent's workplace, without deciding the final outcome between Marshall's estate and the defendants.

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.

652 F.Supp. 1581 (1987)

Deborah M. MARSHALL, Individually and as Personal Representative of the Heirs and Estate of

Frederick A. Marshall, Jr., Deceased, Plaintiff,

v.

The CELOTEX CORPORATION, Eagle-Picher Industries, Inc., Armstrong World Industries, Inc.,

Raymark Industries, Inc., Raymark Corporation, H.K. Porter Company, Inc., Southern Textile

Corporation, GAF Corporation, Fibreboard Corporation, Keene Corporation, Keene Building

Products Corporation, Pittsburg Corning Corporation, Forty-Eight Insulation, Inc. and Nicolet, Inc.,

Defendants.

Civ. A. No. 82-73643.

February 17, 1987.

United States District Court, E.D. Michigan, S.D.

Robert E. Sweeney, Jr., Robert E. Sweeney, Sr., Cleveland, Ohio, Kenneth B. Williams, East Lansing, Mich., for plaintiff. Ronald E. Wagner, Kitch, Saurbier, Drutchas, Wagner & Kenney, Detroit, Mich., for defendants.

MEMORANDUM OPINION AND ORDER

FEIKENS, District Judge.

Deborah Marshall ("plaintiff"), Personal Representative of Frederick Marshall, Jr. ("Marshall"), claims that Marshall contracted mesothelioma and died because of exposure to products containing asbestos. Plaintiff concedes her inability to identify the particular products to which Marshall was exposed, but she argues that defendants' alleged concerted effort to suppress information about the risk of asbestos products obviates the need for identification.[1] Defendants move for summary judgment. On January 29, 1987, I heard argument and asked plaintiff to proffer evidence of both concerted activity and its relationship to Marshall's death.[2]

The motion presents a difficult causation issue. Defendants' logic is forceful: without an identification requirement,[3] each manufacturer of asbestos products becomes [*1582] an insurer for all manufacturers of the products. But the equity of plaintiff's position is compelling: if manufacturers cooperate to conceal product risk, and if the concealed risk subsequently causes injury, justice demands a remedy. The concert of action theory rests upon this equity to justify joint and several liability against any manufacturer that substantially contributes to an injury by coordinating activity with other manufacturers to conceal information. See Comment, DES and a Proposed Theory of Enterprise Liability, 46 Fordham L.Rev. 963, 972-973, 978-985 (1978).

I am unwilling to reject this theory on summary judgment.[4] A complete presentation of plaintiff's case will illuminate the issue and provide an evidentiary record for appeal. Plaintiff's burden will be heavy. To survive a motion for directed verdict, she must establish both cause in fact, by demonstrating concerted activity, and proximate cause, by demonstrating that defendants' conduct "was so significant and important a cause that [defendants] should be legally responsible." Cousineau, 140 Mich.App. at 35, 363 N.W.2d 721 (remanding for trial court ruling on proximate cause). Cf. Comment, supra, at 973 (" [T]he court must make a ... determination of proximate cause: does the defendants' duty to protect the plaintiff extend to the particular result involved? As a matter of policy, a court may refuse to hold defendant jointly liable where to do so would impose an extraordinary extension of the `original obligation' owed by defendants to the plaintiff.") (footnotes omitted).[5] Accordingly, defendants' motion for summary judgment is DENIED.

IT IS SO ORDERED.

[1] I rejected plaintiff's theories of enterprise liability, market share liability, and alternative liability in Marshall v. Celotex, 651 F.Supp. 389 (E.D.Mich.1987).

[2] Cousineau v. Ford Motor Co., 140 Mich.App. 19, 33, 363 N.W.2d 721 (1985) ("[P]laintiff is entitled to recover ... on a concert of action theory if she can prove that [defendants] acted tortiously pursuant to a common design and that such action proximately caused the injury.").

[3] Abel v. Eli Lilly & Co., 418 Mich. 311, 324, 343 N.W.2d 164 (1984) ("[T]he threshold requirement of any products liability action is identification of the injury-causing product and its manufacturer."), cert. denied, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984). [4] I will reconsider defendants' argument on a motion for directed verdict at the close of plaintiff's case.

[5] Plaintiff cannot establish that the manufacturer whose products allegedly caused Marshall's death participated in concerted efforts to suppress information. Plaintiffs in Michigan's principal concert of action cases were able to demonstrate this. See Abel, 418 Mich. at 321, 331-339, 343 N.W.2d 164 (alleged concerted activity included either the manufacturer of the particular product responsible for injury or all known manufacturers of the generic product); Walters v. Sargent, 390 Mich. 775, 210 N.W.2d 315 (1973) (alleged concerted activity included the hunter who shot plaintiff). Cf. Cousineau, 140 Mich.App. at 25, 35, 363 N.W.2d 721 (remanding without deciding whether alleged concerted activity between the major manufacturers of a product, not necessarily including the manufacturer of the particular product allegedly causing death, permitted an inference of proximate cause).

Sources

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