Rohrbaugh v. Celotex Corp. (1995)

Our plain-English summary of Rohrbaugh v. Celotex Corp. (U.S. Court of Appeals, Tenth Circuit, May 3, 1995).

Three daughters of Dorothy Mae Palmer sued Owens-Corning Fiberglas (OCF) and Celotex for negligence and products liability over her death from mesothelioma. They alleged she was exposed to asbestos dust from OCF products when she washed her husband's work clothes. A jury had awarded $450,000, but the Tenth Circuit vacated that judgment in an earlier appeal (Rohrbaugh I). That court held OCF had no duty to warn because Mrs. Palmer was not a foreseeable purchaser or user, and because there was no evidence OCF knew or should have known the type of asbestos could cause mesothelioma. On remand the district court granted summary judgment to OCF, and the plaintiffs appealed. The Tenth Circuit affirmed. It applied the law of the case doctrine and noted the plaintiffs offered no new evidence, only a list of trial evidence. It rejected their argument that the earlier holdings were dicta, since those holdings were the basis for vacating the judgment. It also found they had waived any challenge by not seeking review of that decision.

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, Tenth Circuit
• Decided: May 3, 1995
• Citation: 53 F.3d 1181
• Docket: No. 93-5277
• Stage: Appeal from summary judgment

Outcome. The Tenth Circuit affirmed summary judgment for Owens-Corning Fiberglas, holding that its earlier decision was the law of the case and the plaintiffs, the daughters of Dorothy Palmer, offered no new evidence.

What the court held. Under the law of the case doctrine, an appellate court's earlier holdings, explicit or by necessary implication, govern later stages of the same case. The earlier ruling that the plaintiff was not a foreseeable user and that the manufacturer had no reason to know of the hazard defeated both the products liability and negligence claims.

Issues decided: Design Defect, Failure to Warn, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Dorothy Mae Palmer (family member): mesothelioma; died

Who	Work	Where	When	Products
Dorothy Mae Palmer	washed her husband's work clothes; dust brought home			products manufactured by Owens-Corning Fiberglas

The defendants

• Owens-Corning Fiberglas Corporation (manufacturer) · its asbestos trust
• The Celotex Corporation (manufacturer) · its asbestos trust

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rohrbaugh v. Owens-Corning Fiberglas Corp. (U.S. Court of Appeals, Tenth Circuit, 1992). The Tenth Circuit vacated the judgment for the plaintiffs against Owens-Corning and Celotex because the jury instructions wrongly imposed a duty to warn Mrs. Palmer, and remanded for a new trial, so the defendants prevailed on appeal.

Later decisions citing this one

3 later decisions in our library cite this one:

• In re Estate OF Holmes v. Pneumo Abex, LLC (Illinois Appellate Court, 4th District, 2011). The appellate court reversed the trial court's judgment on the jury verdict for plaintiff, holding that Abex and Honeywell were entitled to judgment n.o.v. because they owed no duty to the decedent; the defendants won and the estate lost.
• Bootenhoff v. Hormel Foods Corporation (U.S. District Court, Western District of Oklahoma, 2014). The court granted Cleaver-Brooks' motion for summary judgment on the products liability and negligence claims, ruling for Cleaver-Brooks and against the Bootenhoffs, and denied its motion to strike as moot.
• Bootenhoff v. Hormel Foods Corporation (U.S. District Court, Western District of Oklahoma, 2014). The court granted International Paper Company's motion for summary judgment, holding it owed no duty of care to Norma Bootenhoff, so the Bootenhoffs' negligence and punitive damages claims failed; IPC's motion to strike was denied as moot.

Amounts in the opinion

• $450,000 (total)

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.

53 F.3d 1181 (1995)

Susan ROHRBAUGH, Barbara Ann Clay, Debra Mae Ambler, individually and as Personal

Representatives of the Heirs and Estate of Dorothy Mae Palmer, deceased, Plaintiffs-Appellants,

v.

The CELOTEX CORPORATION, Defendant, and

Owens-Corning Fiberglas Corporation, Defendant-Appellee.

No. 93-5277.

May 3, 1995.

United States Court of Appeals, Tenth Circuit.

[*1182] Paul F. Donsbach (and Brent M. Rosenthal of Baron & Budd, Dallas, TX, and Mark H. Iola and Randall L. Iola of Ungerman & Iola, Tulsa, OK, with him on the brief), for plaintiffs-appellants.

Scott A. Law (Larry G. Cassil, Jr. with him on the brief) of Pierce, Couch, Hendrickson, Baysinger & Green, Oklahoma City, OK, for defendant-appellee.

Before KELLY, BRIGHT, and BARRETT, Circuit Judges.[†]

PAUL J. KELLY, Jr., Circuit Judge.

Plaintiffs-Appellants Rohrbaugh, Clay, and Ambler appeal the district court's grant of summary judgment in favor of Defendant-Appellee Owens-Corning Fiberglas ("OCF"). Our jurisdiction arises under 28 U.S.C. § 1291 and we affirm. Background

Plaintiffs filed a negligence and products liability action to recover for the alleged wrongful death of their mother, Dorothy Mae Palmer. Plaintiffs allege that Mrs. Palmer was exposed to asbestos dust when she washed the work clothes worn by her husband, this dust came from products manufactured by OCF, and the exposure caused Mrs. Palmer to develop mesothelioma, a tumor of the visceral or parietal pleura. Oklahoma law controls.

A jury awarded $450,000 to Plaintiffs for the death of Mrs. Palmer. On appeal, we vacated the judgment and remanded for further proceedings in conformance with the opinion. Rohrbaugh v. Owens-Corning Fiberglas Corp., 965 F.2d 844 (10th Cir.1992) ("Rohrbaugh I"). Defendant OCF moved for summary judgment. Plaintiffs now appeal the grant of summary judgment, contending that the district court erred in applying the law of the case.

Discussion

We review a grant of summary judgment de novo, applying the same legal standard used by the district court under Fed.R.Civ.P. 56(c). James v. Sears, Roebuck & Co., 21 F.3d 989, 997-98 (10th Cir.1994). Summary judgment should be granted if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). We consider the "factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary [*1183] judgment." Blue Circle Cement, Inc. v. Board of County Comm'rs., 27 F.3d 1499, 1503 (10th Cir.1994). Summary judgment is appropriate if the non-moving party cannot adduce probative evidence on an element of its claim upon which it bears the burden of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50, 106 S.Ct. 2505, 2509-11, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-27, 106 S.Ct. 2548, 2552-55, 91 L.Ed.2d 265 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986).

The law of the case doctrine provides "`[w]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.'" Mason v. Texaco, Inc., 948 F.2d 1546, 1553 (10th Cir.1991)

(quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983)), cert. denied, 504 U.S. 910, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992). Thus when a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal. United States v. Monsisvais, 946 F.2d 114, 116 (10th Cir.1991) (citing 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice ¶ 0.404[1], at 119 (2d ed. 1991)). This principle applies to all "issues previously decided, either explicitly or by necessary implication." Guidry v. Sheet Metal Workers Int'l Ass'n, 10 F.3d 700, 705 (10th Cir.1993) (citations omitted), cert. denied, ___ U.S. ___, 115 S.Ct. 1691, 131 L.Ed.2d 566 (1995).

Plaintiffs argue that they have not had the opportunity to litigate their case under the correct law. In order to maintain an action in manufacturer's products liability, Plaintiffs must prove that the product was the cause of the injury, that the defect existed in the product at the time the product left the Defendant's possession and control, and that the defect made the product unreasonably dangerous. Kirkland v. General Motors Corp., 521 P.2d 1353, 1363 (Okla.1974). The "unreasonably dangerous" prong of this test is not met here. Accordingly, summary judgment was appropriate. See Celotex, 477 U.S. at 323-27, 106 S.Ct. at 2552-55.

A product is unreasonably dangerous if it is "`dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.'" Kirkland, 521 P.2d at 1362-63 (quoting Restatement (Second) of Torts § 402A cmt. 1 (1965)). An ordinary consumer is defined under Oklahoma law as "one who would be foreseeably expected to purchase the product involved." Woods v. Fruehauf Trailer Corp., 765 P.2d 770, 774 (Okla.1988). The failure of the manufacturer to properly warn the consumer of dangers associated with a product's use may also cause the product to be considered unreasonably dangerous when it is known or should be known that hazards exist. McKee v. Moore, 648 P.2d 21, 23 (Okla.1982).

In Rohrbaugh I, however, we reviewed the trial evidence and held that the Defendant did not have a duty to warn Mrs. Palmer because she was "not a foreseeable purchaser or user of the product." Rohrbaugh, 965 F.2d at 846. Subsequently on remand, in response to the motion for summary judgment, Plaintiffs failed to produce any additional evidence to create an issue of fact concerning the lack of foreseeability.

Additionally, in Rohrbaugh I we held that Plaintiffs had "produced no evidence that [Defendant] knew or should have known of the hazards associated with their product[ ]." Id. at 847. Specifically, we found that based on the evidence before the jury, it was unknown at the time of exposure that the particular type of asbestos associated with Defendant's product could cause mesothelioma. Id. Plaintiffs again failed to produce any additional evidence in response to the summary judgment motion to overcome the lack of evidence on the issue. Instead, Plaintiffs merely listed in summary fashion items of evidence previously admitted at trial. Aplt. App., doc. 4 at 6.

Further, because Mrs. Palmer was not a foreseeable consumer, the negligence claim cannot be maintained. The threshold [*1184] question in a negligence action is whether the defendant owed a duty to the plaintiff allegedly harmed. Wofford v. Eastern State Hosp., 795 P.2d 516, 518 (Okla.1990). The most important consideration in this determination is whether the plaintiff is foreseeably endangered by the defendant's conduct. Id. at 519. Because of our holding in Rohrbaugh I that Mrs. Palmer was not a foreseeable purchaser or user of the product manufactured by OCF and that Defendants "could not have foreseen that Mrs. Palmer would be exposed to their products in the manner in which she was[,]" the threshold question of duty is not satisfied. Rohrbaugh, 965 F.2d at 846. In the absence of any additional evidence presented by Plaintiffs, we follow the law of Rohrbaugh I.

Plaintiffs argue, however, that the law of the case doctrine does not apply here because our holdings in Rohrbaugh I were dicta. Dicta are "statements and comments in an opinion concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the case in hand." Black's Law Dictionary 454 (6th ed. 1990). To the contrary, the holdings at issue were essential to the determination of the first appeal because they provided the basis for declaring the jury instructions erroneous and vacating the judgment. Moreover, Plaintiffs have waived their right to challenge the correctness of the holdings in Rohrbaugh I by failing to seek review of that decision when they had the opportunity to do so. Capps v. Sullivan, 13 F.3d 350, 353 (10th Cir.1993) (citing Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243, 250 (D.C.Cir.1987)).

AFFIRMED.

[†] Honorable Myron H. Bright, Senior United States Circuit Judge-Eighth Circuit, sitting by designation.

Sources

• The opinion on Google Scholar