Peerman v. Georgia-Pacific Corp. (1994)

Our plain-English summary of Peerman v. Georgia-Pacific Corp. (U.S. Court of Appeals, Seventh Circuit, September 8, 1994).

Patricia Peerman sued Georgia-Pacific Corporation and Turner & Newall (T & N) for the wrongful death of her husband, Gerald Peerman, who died of malignant mesothelioma in December 1985. He had worked from 1963 to 1982 at the Babcock & Wilcox plant in Mt. Vernon, Indiana, mostly in shipping and receiving. She claimed he was exposed to asbestos dust from Georgia-Pacific's Ready Mix joint compound, applied to walls in Building 219, and T & N's Limpet spray-on insulation, sprayed on a wall during one week after a fire. The district court granted summary judgment for the defendants. The Seventh Circuit affirmed. It did not decide which Indiana causation test applied, because under any test a plaintiff must show enough evidence that he inhaled dust from the product. Mrs. Peerman showed he might have walked through the areas, but offered no evidence that applying these semiliquid products produced significant dust that could have drifted to him. Her experts had not described wet asbestos fibers or visited the plant.

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, Seventh Circuit
• Decided: September 8, 1994
• Citation: 35 F.3d 284
• Docket: No. 93-3501
• Stage: Appeal from summary judgment

Outcome. The Seventh Circuit affirmed summary judgment for Georgia-Pacific and Turner & Newall (T & N), holding that Mrs. Peerman did not produce evidence that her husband inhaled asbestos dust from the defendants' products.

What the court held. Even under a 'job site' test of causation, a plaintiff must produce evidence that the defendant's product, as used, could have produced a significant amount of asbestos dust that the plaintiff might have inhaled; presence of the product at the work site is not enough.

Issues decided: Causation, Choice of Law, Expert Testimony, Product Identification.

The people and their exposure

• Gerald Gene Peerman: mesothelioma; died

Who	Work	Where	When	Products
Gerald Gene Peerman	shipping and receiving department worker and supervisor; worked near others using it	Babcock & Wilcox Mt. Vernon plant, Building 219, Mt. Vernon, Indiana	1972-1979	joint compound, Ready Mix joint compound (Georgia-Pacific)
Gerald Gene Peerman	shipping and receiving department worker and supervisor; worked near others using it	Babcock & Wilcox Mt. Vernon plant, Five Bay area, Mt. Vernon, Indiana	1970-1975	sprayed asbestos, AA Limpet Asbestos Fibre (T & N's predecessor)

The defendants

• Georgia-Pacific Corporation (manufacturer)
• Turner & Newall, PLC (T & N plc) (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.
• 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

6 later decisions in our library cite this one:

• Parks v. AP Green Industries, Inc. (Indiana Court of Appeals, 2001). The Court of Appeals affirmed summary judgment for B.M.W., Hunter and Morrison on product identification and upheld the denial of Chicago Firebrick's product-identification motion, but reversed summary judgment for Chicago Firebrick, Uniroyal and Green on the statute of repose and remanded for the Parkses.
• Little v. Budd Company (U.S. District Court, District of Kansas, 2018). The court denied Budd Company's motion to exclude Dr. Brody, granted in part and denied in part its motion to exclude Dr. Castleman (barring testimony about what Budd knew), and denied the motion on Dr. Frank as moot.
• Waite v. Aii Acquisition Corp. (U.S. District Court, Southern District of Florida, 2016). The court denied Ford's motion for summary judgment and its motion to exclude Plaintiffs' causation experts and historian, denied Plaintiffs' motion to exclude Ford's experts (while barring untimely expert analysis), and denied Plaintiffs' motion to reconsider the dismissal of Union Carbide for lack of personal jurisdiction.
• Spoonamore v. Armstrong World Industries, Inc. (U.S. District Court, Southern District of Indiana, 1999). The district court granted John Crane's motion for summary judgment, ruling against the Spoonamore plaintiffs on the product claims, the wrongful death claim and the loss of consortium claim.
• Spoonamore v. Armstrong World Industries, Inc. (U.S. District Court, Southern District of Indiana, 1998). The district court granted John Crane's motion for summary judgment, ruling against the Spoonamore estate and Mrs. Spoonamore on their negligence, strict liability, wrongful death and loss of consortium claims.
• Harris v. AC & S, Inc. (U.S. District Court, Southern District of Indiana, 1995). The court granted summary judgment to Pittsburgh Corning, Owens-Corning, Anchor Packing and Garlock, and in part to Georgia-Pacific (for Bestwall). It denied it to John Crane, to Georgia-Pacific on its joint compound, and initially to A.W. Chesterton. It later reconsidered, granted Chesterton summary judgment, and directed final judgment for all 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.

35 F.3d 284 (1994)

Patricia A. PEERMAN, Individually and as Administratrix, of the Estate of Gerald Gene Peerman,

Plaintiff-Appellant,

v.

GEORGIA-PACIFIC CORPORATION and Turner & Newall, PLC, a Foreign Corporation, Defendants-

Appellees.

No. 93-3501.

Argued February 22, 1994.

Decided September 8, 1994.

United States Court of Appeals, Seventh Circuit.

[*285] Stephen L. Williams (argued), Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, IN, Timothy E. Eble, Ness, Motley, Loadholt, Richardson & Poole, Barnwell, SC, and Michael Mixson, and Richard H. Middleton, Jr., Middleton & Mixson, Savannah, GA, for plaintiff-appellant.

Robert D. MacGill (argued) and Andrew J. Detherage, Barnes & Thornburg, Indianapolis, IN, for Georgia-Pacific Corp., defendant-appellee.

Michael A. Bergin (argued), Julia M. Blackwell, Karl M. Koons, III, and Richard A. Huser, Locke, Reynolds, Boyd & Weisell, Indianapolis, IN, for Turner & Newall, PLC, defendant-appellee.

Before POSNER, Chief Judge, and COFFEY and ROVNER, Circuit Judges.

COFFEY, Circuit Judge.

Patricia Peerman filed this wrongful death action alleging that her husband, Gerald Peerman, died from an illness caused by exposure to airborne asbestos from products manufactured and sold by Georgia-Pacific Corporation and Turner & Newall, plc (now known as T & N plc). Federal jurisdiction is based on diversity of citizenship. See 28 U.S.C. § 1332(a). The district court granted summary judgment to Georgia-Pacific and T & N. We affirm.

BACKGROUND

Gerald Peerman was employed by Babcock & Wilcox (B & W) at its Mt. Vernon, Indiana, plant from 1963 to 1982. The plant, a facility for the manufacture of parts and sub-assemblies for large utility boilers, consisted of several buildings and covered about 99 acres. During the majority of his employment with B & W, Mr. Peerman worked in the shipping and receiving department, where he was responsible for loading and unloading products shipped to and from the plant as well as transporting products within the plant. Mr. Peerman also worked as a supervisor in the shipping and receiving department, in which capacity he traveled throughout the plant as needed. During his tenure at the Mt. Vernon plant, Mr. Peerman might have been exposed to asbestos dust.

Masses of asbestos fibers, when disturbed, tend to break down into tiny dust particles which become suspended in the air. Knowledge of the dangers of inhaling and ingesting asbestos dust dates back at least to the First Century. Barry I. Castleman, M.D., Asbestos: Medical and Legal Aspects 1 (3d ed. 1990). In recent times, it has been documented that the disabilities associated with the inhalation and ingestion of asbestos dust manifest themselves primarily in three diseases: asbestosis, pulmonary and bronchogenic carcinoma, and mesothelioma. Asbestosis, the earliest known and most common asbestos-related disease, manifests itself 10 to 40 years after exposure to significant quantities of asbestos. Inhalation of asbestos particles initiates a scarring process that destroys air sacs in healthy lung tissue; and this, in turn, results in a decrease in pulmonary function and lung volume. Gray's Attorneys' Textbook of Medicine ¶ 205C.11(1) (3d ed. 1980). Pulmonary and bronchogenic carcinoma is the uncontrolled multiplication of epithelial cells in the lungs. It does not generally manifest itself until at least 15 years after the initial exposure to asbestos. Id. ¶ 205C.71. Mesothelioma is a rare

cancer of the membrane lining the lungs, chest cavity, and abdominal cavity. It may take 30 to 35 years for mesothelioma to manifest itself, but the disease is invariably fatal. Id. ¶ 205C.72.

In December 1985, three years after he left B & W, Mr. Peerman died of malignant mesothelioma. Mrs. Peerman alleges in her suit that, in the course of his duties at the Mt. Vernon plant, Mr. Peerman was exposed to asbestos dust from the defendants' asbestos-containing products and that this caused him to develop mesothelioma.[*] During the [*286] 1960s and 1970s, Georgia-Pacific manufactured and sold a pre-mixed joint compound, "Ready Mix" joint compound, that contained asbestos. Ready Mix was a plaster-like substance that was used to seal and smooth the joints between adjoining pieces of wallboard. It was applied with a caulking gun. Sometime between 1972 and 1979, construction workers applied Ready Mix joint compound to the walls of "Building 219" of the plant. T & N's predecessor manufactured and sold a spray-on insulation for drywall construction called "AA Limpet Asbestos Fibre." During a one-week period sometime between 1970 and 1975, following a fire at the plant, construction workers sprayed Limpet on the north wall of an area of the plant known as "Five Bay."

The district court granted summary judgment on the ground that Mrs. Peerman had failed to produce evidence to support a reasonable inference that the defendants' products caused Mr. Peerman to contract mesothelioma. The court applied a test for causation under which Mrs. Peerman was required to produce evidence that Mr. Peerman had been exposed to asbestos from the defendants' asbestos-containing products. The court found that, although Mrs. Peerman had produced evidence that Georgia-Pacific's Ready Mix Joint Compound and T & N's Limpet were used at the same general work site where Mr. Peerman worked, she had not produced evidence that Mr. Peerman was exposed to asbestos from these products.

DISCUSSION

We review the grant of summary judgment to T & N and Georgia-Pacific de novo. See Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 499-500 (7th Cir.1994). 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 as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). We view the record and all justifiable inferences drawn from it in the light most favorable to the party against whom judgment was entered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

It is agreed in this case that Indiana law governs the issue whether the defendants' asbestos-containing products caused Mr. Peerman to develop mesothelioma. The parties disagree on what the test for causation in asbestos cases is in Indiana's courts, and it is this dispute to which the parties devote most of their efforts. Neither the Supreme Court of Indiana nor the Indiana Court of Appeals has enumerated a test for causation in asbestos cases. Georgia-Pacific and T & N urge that the test that would be adopted by the Indiana Supreme Court is the one applied by the district court in this case and set forth in Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985), which requires proof of exposure to the asbestos-containing product. Mrs. Peerman maintains that the Indiana Supreme Court would adopt the "job site" test that is set forth in Lockwood v. AC & S, Inc., 44 Wash.App. 330, 722 P.2d 826 (1986), aff'd, 109 Wash.2d 235, 744 P.2d 605 (1987) (en banc), and applied in Richoux v. Armstrong Cork Corp., 777 F.2d 296 (5th Cir.1985), which only requires proof that the asbestos-containing product was used at a job site at a time when the plaintiff was employed at that job site. If the answer to the question whether the Indiana Supreme Court would adopt the test for causation applied by the district court, the "job site" test championed by Mrs. Peerman, or an alternative test controlled the outcome of this case, we might certify the question to the Indiana Supreme Court and stay our decision in this case to await the court's answer. Circuit Rule 52 provides for this procedure so long as the rules of the Indiana Supreme Court provide for certification to that court by a federal court of questions of state law. They do. See Ind. R.App.P. 15(O). Nevertheless, we see no [*287] need to certify this case to the Indiana Supreme Court because, no matter what test for causation is applied, Mrs. Peerman has failed to produce evidence to support a reasonable inference that the defendants' products caused her husband's mesothelioma. Although under the "job site" test or any similar test for causation a plaintiff need not produce evidence of actual exposure to the product that is alleged to have caused an asbestos-related disease, a plaintiff still must produce evidence sufficient to support an inference that he inhaled asbestos dust from the defendant's product. Of course, this inference can be made

only if it is shown that the defendant's product, as it was used during the plaintiff's tenure at the job site, could possibly have produced a significant amount of asbestos dust and that the asbestos dust might have been inhaled by the plaintiff. This case involves two products — Ready Mix joint compound and Limpet spray-on insulation — which were sold in semiliquid form. Ready Mix had the consistency of a plaster, and Limpet had the consistency of a slurry. Mrs. Peerman produced evidence that her husband might have walked through areas of the Mt. Vernon plant while these products were being applied. She failed, however, to produce the necessary evidence that application of the products by the construction workers generated significant levels of asbestos dust, and that at least some of this dust could have drifted far enough in the plant to have been inhaled by Mr. Peerman.

Perhaps application of the defendants' products did not generate dangerous levels of asbestos dust. This seems more likely with respect to Ready Mix joint compound, which was applied to joints between adjacent pieces of wallboard with a caulking gun, than with respect to Limpet, which was applied to walls with a spray gun. Nevertheless, even Limpet could have been applied in a manner that resulted in the generation of little or no asbestos dust. Cf. Note, The Causation Problem in Asbestos Litigation: Is There an Alternative Theory of Liability?, 15 Ind.L.Rev. 679, 692 & n. 69 (1982) (noting that method in which asbestos-containing product is used or applied plays important role in determining propensity of product to release asbestos fibers); Irving J. Selikoff, M.D., Insulation Industry Hygiene Research Program, Insulation Hygiene Progress Rep., at 15-16 (Winter 1972) (dumping of dry asbestos cement into a trough prior to adding water generates more asbestos dust than adding the cement to water). Even if application of the defendants' products generated dangerous levels of asbestos dust, perhaps only those actually applying the products were endangered because the wet asbestos dust might not have drifted throughout the workplace like dry asbestos dust. The record is silent on these issues. Summary judgment is appropriate if the nonmoving party has failed to produce evidence sufficient to establish the existence of an essential element of its case on which it bears the burden of proof. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. So it is here. Since Mrs. Peerman has failed to produce evidence of the physical and aerodynamic characteristics of asbestos fibers when they are immersed in a semiliquid medium, we cannot reasonably draw the inference that the use of Ready Mix and Limpet produced asbestos dust that was inhaled by Mr. Peerman.

We realize that Mrs. Peerman submitted evidence to support the proposition that, when released into the air of a workplace, asbestos fibers may drift throughout the workplace and may be inhaled by many workers. This evidence consisted of the affidavit of Dr. Edwin C. Holstein, M.D.; the affidavit of William J. Nicholson; an article entitled "Household Exposure to Asbestos and Risk of Subsequent Disease"; and excerpts from an article entitled "Asbestos-Containing Materials in School Buildings: A Guidance Document." The articles do not help Mrs. Peerman since they fall short of describing the physical and aerodynamic properties of asbestos fibers when immersed in a liquid. For this same reason, the affidavits do not help Mrs. Peerman. Moreover, even if the experts had stated in their affidavits to the properties of wet asbestos fibers, their testimony would not have helped Mrs. Peerman avoid summary judgment since neither of the experts visited the Mt. Vernon plant to conduct tests in order that they might ascertain the air flow patterns in the [*288] areas in which Mr. Peerman worked and the extent to which asbestos fibers could have been disseminated there.

The judgment of the district court is AFFIRMED.

[*] Although her original complaint named 29 defendants, Mrs. Peerman voluntarily dismissed her claims against all defendants except Georgia-Pacific and T & N. There is nothing in the record to explain the reason for the dismissals; however, during oral argument, Mrs. Peerman's lawyer indicated that the other defendants were dismissed because Mrs. Peerman had failed to establish that her husband had been exposed to asbestos from their products.

Sources

• The opinion on Google Scholar