Thompson v. Johns-Manville Sales Corp. (1983)

Our plain-English summary of Thompson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, September 16, 1983).

Wilford Thompson, an insulation worker from 1952 to 1978, sued several asbestos product makers in Louisiana federal court, claiming he developed asbestosis from handling asbestos-containing products. He remembered the brand names of some products but not those of four defendants, including Raybestos-Manhattan, and had no other evidence tying their products to his illness. The trial court granted those four summary judgment because causation was lacking. On appeal, Thompson argued that theories such as joint liability, alternative liability, enterprise liability and market share liability excused him from proving causation against each defendant. The Fifth Circuit affirmed. It first held that his failure to file a response did not alone require affirmance. It then found the joint liability and alternative liability theories inapplicable because they involve defendants shown to have some connection to the injury. It declined to adopt enterprise or market share liability for Louisiana, calling them radical departures that state courts should decide. Judge Goldberg dissented and would have certified the question to the Louisiana Supreme Court.

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, Fifth Circuit
• Decided: September 16, 1983
• Citation: 714 F.2d 581
• Docket: Nos. 82-3033, 82-3038, 82-3242 and 82-3354
• Stage: Appeal from summary judgment

Outcome. The Fifth Circuit affirmed summary judgment for four defendants (Raybestos-Manhattan and others) against plaintiff Thompson, who could not show their products caused his asbestosis; one judge dissented and would have certified the question to the Louisiana Supreme Court.

What the court held. Louisiana law as predicted by the court does not dispense with proof that a defendant's product caused the injury; enterprise and market share liability are radical departures that Louisiana courts, not a federal court sitting in diversity, must adopt. Alternative liability and indivisible-injury theories do not apply to defendants with no proven connection to the injury.

Issues decided: Fault, Apportionment and Settlement Credits, Causation, Choice of Law, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

In this Louisiana case, the Fifth Circuit predicted that Louisiana law would not excuse an asbestos plaintiff from proving that a particular defendant's product caused his disease. It refused to adopt enterprise or market share liability for Louisiana, calling both "radical departures from traditional theories of tort liability" that were for Louisiana courts to decide. It also held that alternative liability and indivisible-injury theories apply only to defendants shown to have some connection to the injury. Judge Goldberg dissented and would have certified the question to the Louisiana Supreme Court.

Later Louisiana courts, including the Louisiana Supreme Court, have cited the decision alongside state cases for the point that asbestos claims are judged under traditional tort theories that require proof of causation. The Louisiana Supreme Court has also quoted the dissent's view that asbestos injuries differ from the injuries existing tort doctrines were designed to address. Courts elsewhere, including the Eleventh Circuit and the Florida and Ohio Supreme Courts, have cited it as a decision rejecting market share liability in asbestos cases. The Fifth Circuit has pointed to it as refusing to predict that Louisiana would adopt such a theory.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• Wilford Leroy Thompson, Jr.: asbestosis

Who	Work	Where	When	Products
Wilford Leroy Thompson, Jr.	insulation worker	Louisiana	1952-1978

The defendants

• Raybestos-Manhattan, Inc. (manufacturer)
• Johns-Manville Sales Corp. (manufacturer)

Later decisions citing this one

21 later decisions in our library cite this one:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Landry v. Avondale Industries, Inc. (Louisiana Supreme Court, 2004). The Louisiana Supreme Court reversed the court of appeal, reinstated the trial court's summary judgment for Reilly-Benton and Liberty Mutual that comparative fault applies to the wrongful death claim, and remanded; the Landry plaintiffs lost.
• Austin v. Abney Mills, Inc. (Louisiana Supreme Court, 2002). The Louisiana Supreme Court reversed the summary judgment that the lower courts had granted to employers International Paper and Arizona Chemical, and remanded for further proceedings, because the employers had not shown Hogue's tort claim accrued only after 1975.
• Cole v. Celotex Corp. (Louisiana Supreme Court, 1992). The Louisiana Supreme Court affirmed the court of appeal: pre-comparative-fault (virile share) law governed, the nine executive officers counted as nine separate shares, and the insurer INA's annual policies could be stacked, so INA owed each of the three plaintiff workers $135,000 plus interest.
• Gaulding v. Celotex Corp. (Texas Supreme Court, 1989). The Texas Supreme Court affirmed the court of appeals' judgment upholding summary judgment for Celotex, National Gypsum, U.S. Gypsum, Keene and GAF against the survivors of Ethel Gaulding.
• Case v. Fibreboard Corp. (Oklahoma Supreme Court, 1987). Answering a question certified by the Tenth Circuit, the Oklahoma Supreme Court held that Oklahoma would not recognize market share or other collective liability in asbestos injury cases where the plaintiff cannot identify the specific tortfeasors, favoring the defendant manufacturers over Mr. and Mrs. Case.
• Goldman v. Johns-Manville Sales Corp. (Ohio Supreme Court, 1987). The Ohio Supreme Court reversed the court of appeals, held that neither alternative liability nor market-share liability applied, and remanded to reinstate summary judgment for all the asbestos-company defendants against the executrix of Roy Goldman's estate.
• Celotex Corp. v. Copeland (Florida Supreme Court, 1985). The Florida Supreme Court quashed the Third District's approval of market share liability (reinstating dismissal of that theory but allowing Copeland to amend his complaint), and approved the Third District's ruling that the statute of limitations could not be decided by summary judgment, so the Copelands may proceed against the asbestos manufacturers.
• Cimino v. Raymark Industries, Inc. (U.S. Court of Appeals, Fifth Circuit, 1998). The court reversed the judgments against Pittsburgh Corning in the 143 phase III sample cases and 5 extrapolation cases, affirmed the nine class-representative judgments except for the prejudgment interest start date, and reversed the judgments against Asbestos Corporation Limited, rendering judgment for it.
• Jackson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1986). The en banc Fifth Circuit affirmed the district court's judgment for plaintiff Jackson against Johns-Manville and Raybestos-Manhattan, including compensatory and punitive damages.
• 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.
• Gideon v. Johns-Manville Sales Corp. (U.S. Court of Appeals, Fifth Circuit, 1985). The Fifth Circuit affirmed the jury verdict for plaintiff Gideon against five asbestos manufacturers, reversed it and entered judgment for defendants Raymark and Standard Insulations, and remanded for the damages to be recalculated.
• Marchand v. Asbestos Defendants (Louisiana Court of Appeals, 4th Circuit, 2010). The appeals court granted the Marchands' writ in part, vacating the district court's ruling for Continental Insurance as to the survival claim, and denied the writ as to the wrongful death claim, which it found barred by the dissolved-corporation peremptive statute.
• Thibodeaux v. Asbestos Corp. Ltd. (Louisiana Court of Appeals, 4th Circuit, 2008). The Louisiana Court of Appeal affirmed the summary judgment that dismissed Eagle Asbestos & Packing Company and its insurer OneBeacon, so the Thibodeauxs lost their claims against those two defendants.
• Vodanovich v. AP Green Industries, Inc. (Louisiana Court of Appeals, 4th Circuit, 2004). The appeals court affirmed summary judgment for Sank, Inc. (formerly Buck Kreihs Co.) and Dixie Machine Welding and Metal Works, dismissing the wrongful death claim of the longshoreman's estate for lack of proof of exposure.
• Abadie v. Metropolitan Life Ins. Co. (Louisiana Court of Appeals, 5th Circuit, 2001). The appeals court reversed the trial judge's JNOVs that had raised the seven plaintiffs' damage awards and reinstated the jury's awards, affirmed liability of Asbestos Corporation Limited and four Avondale safety officers (O'Donnell, Kennedy, Chantrey, Territo; not Chantrey as to Badeaux), reversed liability of two other officers (Kelmell, Roberts), and recalculated each judgment by virile shares, including the Johns-Manville trust and four of the settling manufacturers.
• Quick v. Murphy Oil Co. (Louisiana Court of Appeals, 4th Circuit, 1994). The appeals court reversed the $46,000 contribution judgment that the trial court had entered for Owens Corning Fiberglas against Garlock, because Quick's exposure to Garlock's asbestos products was trivial and not a cause in fact of his asbestosis.
• 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.
• Sholtis v. American Cyanamid Co. (New Jersey Superior Court, Appellate Division, 1989). The Appellate Division held the trial judge erred in refusing the plaintiffs' supplemental proofs, reinstated the claims against Porter Hayden, remanded the claims against the other Wellington defendants for reconsideration under new exposure standards, and affirmed summary judgment for John Crane.
• 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.
• Menne v. Celotex Corp. (U.S. District Court, District of Kansas, 1986). The court overruled the post-trial motions (JNOV, new trial, remittitur) of Celotex, Eagle-Picher, Fibreboard and Raymark, leaving in place the $2,500,000 jury verdict for plaintiff Menne, and explained that Nebraska law would adopt alternative liability.

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.

714 F.2d 581 (1983)

Wilford Leroy THOMPSON, Jr., Plaintiff-Appellant,

v.

JOHNS-MANVILLE SALES CORP., etal., Defendant,

Raybestos-Manhattan, Inc., etal., Defendants-Appellees.

Nos. 82-3033, 82-3038, 82-3242 and 82-3354.

September 16, 1983.

United States Court of Appeals, Fifth Circuit.

M.H. Gertler, New Orleans, La., for plaintiff-appellant in all cases.

James B. Irwin, Alexander N. Breckenridge, IV, New Orleans, La., for defendant-appellee in No. 82-3033.

Bienvenu, Forter, Ryan & O'Bannon, Robert N. Ryan, William L. Brockman, New Orleans, La., for defendant-appellee in No. 82-3038.

Watson, Blanche, Wilson & Posner, Felix R. Weill, Baton Rouge, La., for defendant-appellee in No. 82-3242. Leach & Paysse, Michael A. Britt, New Orleans, La., for defendant-appellee in No. 82-3354.

Before GOLDBERG, GEE and RANDALL, Circuit Judges.

GEE, Circuit Judge:

This Louisiana diversity appeal requires us to determine whether the law of that state would dispense with proof of causation against some of multiple defendants in an asbestosis case.

Plaintiff Thompson, employed as an insulation worker from 1952 to 1978, handled products containing asbestos during that period. As a result, he contends, he inhaled dust and fibers that produced the disease or condition of asbestosis. He was able to recall the brand names of some of the products to which he was exposed. Because he [*582] did not recall those of today's four appellees and was unable to point to any other evidence connecting their products with his alleged injuries, each was granted summary judgment on the ground that as to it the element of causation was lacking as a matter of law. Thompson appeals, suggesting the applicability to his case of various legal theories that he asserts dispense with causation as requisite to a recovery of damages. Partly on the basis of an Erie guess, we affirm.

We are met at the threshold of our analysis with the contention of several appellees that since Mr. Thompson filed no response to their motions for summary judgment, we need look no further and must affirm on that basis.

Appellees point to no case law supporting their proposition but do cite FRCP 56(e), which reads in relevant part: When a motion for summary judgment is made and supported as provided in this rule, an adverse party may

not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

The Notes accompanying the 1963 Amendment to this rule explain that these two sentences were added to overcome a line of cases which existed, chiefly in the Third Circuit, permitting parties defending against motions for summary judgment to rest on their pleadings.

The quoted language generally supports the argument advanced; however, recent precedent in our circuit, by which we are bound, squarely defeats it. In White v. Thomas, 660 F.2d 680, 682-83 (5th Cir.1980), cert. denied, 455 U.S. 1027, 102 S.Ct. 1731, 72 L.Ed.2d 148, we held that the court must look to the allegations of facts made in the pleadings even where plaintiff,

filed nothing in opposition to the motion save a memorandum asserting that some of the facts were disputed. Even in cases where the party against whom summary judgment is sought fails to comply with Fed.R.Civ.P.

56(e), it is inappropriate to grant summary judgment on the merits on those issues whose decision depends

on resolution of evident factual disputes not put beyond dispute by the affidavit, especially if a limited evidentiary hearing did not afford the party an opportunity to adduce his full case.

Various theories are advanced by Mr. Thompson for dispensing with proof that the products of these defendants caused or contributed to cause his condition. Some clearly will not serve to do so.

Clearly inapposite to his case are such authorities as Hilburn v. Johnson, 240 So.2d 767 (La.Ct.App.1970), and Landers v. East Texas Salt Water Disposal Co., 151 Tex. 251, 248 S.W.2d 731 (1952). These permit the imposition of joint and several liability on persons whose separate wrongful actions, not done in concert, contribute in unknown proportions to cause an indivisible injury. The first concerns two persons who collided with a motorcyclist, causing his death. The second treats of two pipeline carriers whose separate salt water lines ruptured, polluting a lake. In neither was there doubt that each of the two defendants in fact contributed to the overall injury in some degree; and neither authority does more than decline to exonerate a defendant merely because the amount by which he contributed to cause it cannot be ascertained. Even less in point are concert of action theories, where persons acting in knowing collaboration cause an injury and are held liable in solido for the effect of their common scheme.

Also to be distinguished are theories of alternative liability such as those of Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948) (liability imposed on both of two hunters who fired toward plaintiff, burden on each defendant to show he did not cause injury), and of group res ipsa loquitur. Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App.1981). All of these concern defendants who were proved to have some factual connection [*583] with the plaintiff's injury; to apply them to defendants as to which there is no proof of any such connection would beg the question of causation entirely. Like the indivisible injury cases, these shift the burden of proof of causation from the injured plaintiff to those defendants who were connected with it and one or more of whom undoubtedly caused it although, unlike those cases, the result may be that — because of his inability to prove himself innocent — one who in fact contributed nothing to the injury may still be held liable for it. The policy choice underlying such theories seems to be that in the extreme case where one or more of a defined group unquestionably caused an injury and the choice is between exonerating all because the plaintiff cannot show which did so and holding all liable who cannot prove their innocence, the latter result is preferable. Such is not the case here, where a large group of defendants whose products Thompson did recall using remain before the court. These defendants are not members of it.

Mr. Thompson's final set of theories do, in fact, dispense with particular proof of causation. These are ones of "enterprise" and "market share" liability, exemplified by Hall v. E.I. DuPont de Nemours & Co., 345 F.Supp. 353 (E.D.N.Y.1972), suggesting the possibility of joint industry-wide liability for particular blasting cap injuries, and Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980), imposing and allocating several liability by market share. We see little purpose in discussing in detail the potential applicability of these theories to Mr. Thompson's case; writing in diversity, we write on the wind. Louisiana will or will not adopt either or both at some future time. In no reported case has it done so at present, nor have any substantial number of other jurisdictions. Both theories represent radical departures from traditional theories of tort liability. All that Thompson can advance in support of his claim that Louisiana would adopt either if presented his case is a supposed general tendency or trend on the part of Louisiana courts to expand the liability of manufacturers. That is not enough to support our adoption for Louisiana of a particular and radical mode of its expansion. Such departures are for the Louisiana courts, not for us. See Rhynes v. Branick Mfg. Corp., 629 F.2d 409 (5th Cir.1980) ("product line" liability).

AFFIRMED.

GOLDBERG, Circuit Judge, dissenting:

Today the majority has determined to take an Erie guess and "write upon the wind." The majority predicts that Louisiana, if faced with the novel and distinct problems of asbestos related injury, would do nothing more than reflexively apply traditional tort doctrines. I am unwilling to arrogate to myself the decisionmaking duties and competence of the Louisiana Supreme Court. Rather than writing upon the wind, I would consult the chief meteorologists; this case of first impression is an ideal specimen for certification, and because the majority declines to do so, I must dissent.

I. ASBESTOS AND TORT LAW

Disease caused by exposure to asbestos presents monumental problems for tort law relating to causation. First, it is nigh impossible to point to a single fiber of asbestos as the cause of a cancerous lesion in the lungs of an asbestosis victim; asbestos related diseases usually develop after a period of exposure, perhaps from the products of many manufacturers. Second, even if the period of exposure were known, the long time between exposure and onset of symptoms may make it impossible for the victim to remember the sources of exposure. Third, even if the victim has a photographic memory, that might be of no help — much exposure is the result of previously installed asbestos-containing material, so the victim had no chance to learn the source.

My point here is not to dramatize excessively the legal plight of asbestos victims, but to illustrate that the factual predicate giving rise to potential liability from asbestos exposure is simply different from those [*584] that generated most tort doctrines. Without enumerating all of the occasions, suffice it for me to note that tort law has been an area quite open to evolutionary, if not revolutionary, forms of liability in response to unanticipated factual paradigms. This has been particularly true in the area of causation, with a steady evolution, as circumstances demanded, from simple one-party negligence, to joint liability, to alternate liability, to burden-shifting presumptions such as res ipsa loquitur, to theories of market share and enterprise liability. Whether or not asbestos related injury is a circumstance calling for a doctrinal response is a weighty and difficult question; given the increasing inundation of the courts with asbestos related litigation, it is also a question of great consequence.

II. FEDERALISM AND CERTIFICATION

As I have briefly discussed, asbestos related injuries are different in legally important aspects from those types of injuries that present tort doctrines were designed to accommodate. Whether or not those doctrines will be extended to cover asbestos cases is a different sort of question from whether or not those doctrines will be applied to an automobile accident. In one instance a court writes upon a blank slate, in the other a court is closely hemmed in by precedent upon precedent. In the case before us now, the majority affirmatively decides to apply traditional tort doctrines to a new and different species of injury. The majority notes that there are no Louisiana cases relying on market share or enterprise liability and justifies its result with a reluctance to impose a "radical" change in tort law upon Louisiana. What the majority chooses to ignore, however, is that there are no Louisiana cases refusing to apply market share or enterprise liability to similar factual situations. This deliberate blindness enables the majority to sub silentio impose upon Louisiana an equally radical extension of traditional tort doctrines to a case for which those doctrines are ill adapted. Asbestos related injuries are different and this is an important case of first impression.

One of the stellar virtues of Our Federalism is that it provides a hothouse in which fifty-one flowers may blossom. The federal courts, moreover, are not cast in the role of head gardener. Under Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), federal courts sitting in diversity must follow state law. Occasionally, when the law of the state is not crystal-clear, a federal court may have to make an "Erie guess." See, e.g., Meredith v. City of Winter Haven, 320 U.S. 228, 64 S.Ct. 7, 88 L.Ed. 9 (1943). However, federal courts ought not necessarily assume the responsibility of deciding in the first instance important, unsettled questions of state law. E.g., Kaiser Steel Corp. v. W.S. Ranch Co., 391 U.S. 593, 88 S.Ct. 1753, 20 L.Ed.2d 835 (1968). Cf. Clay v. Sun Insurance Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960).

We have a powerful mechanism for avoiding unnecessary Erie guesses — certification. See generally Brown, Certification — Federalism in Action, 7 Cum.L.Rev. 455 (1977) (one of certification's most ardent advocates, Circuit Judge John R. Brown, stating his case). When appropriate we may turn to the font of wisdom of Louisiana law for an authoritative statement. I can think of few cases more appropriate for certification than this one. The legal principles involved are unsettled and far-reaching. The rule established will have great impact on the well-being of the citizens of Louisiana. I am aghast at the possibility that after we deny this plaintiff relief, Louisiana will acknowledge enterprise or market share liability as a viable theory, but that is a risk the majority is willing to take.[1]

[*585] CONCLUSION

As the majority opinion clickety-clacks down the Erie tracks, I fear I hear the sound of the cross-ties splintering. Were I the switchman I would sidetrack this case to the Louisiana switching yards where a locomotive of sufficient power to pull the freight of the majority opinion might be attached. As it is, I remain alone in the caboose, dissenting.

[1] My primary objection with the majority opinion is not the outcome of the Erie guess, but the fact that it makes a guess. However, I am not sure that I would guess the same way, if forced to guess. First, I am not so sure that theories of market share of enterprise liability are such a radical departure from present tort doctrines as the majority suggests. Several manufacturers shipping asbestos related products into the state do not strike me as radically different from a group of hunters standing on the Texas side of the Sabine River and firing their shotguns east towards Louisiana — fibers of asbestos causing an injury are no more susceptible of identification than a shotgun pellet. Cf. Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). Nor does it seem inappropriate to me to shift the burden of proof to the asbestos manufacturer who shipped its products into Louisiana to show that its products did not contribute to an asbestos related disease contracted in Louisiana — when an individual is injured by asbestos, the facts speak for themselves, proclaiming that some manufacturer caused the injury. Cf. Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.Ct.App.1981). Second, the Louisiana courts have been most diligent in protecting their citizens from the hazards of unsafe products sold in the state, and might reasonably be expected to generate legal doctrines responsive to the factual problems posed by asbestos related injury. See generally Plant, Comparative Negligence and Strict Tort Liability, 40 La.L.Rev. 414 (1980); Note, "Manufacturer" Warranty in Louisiana, 33 La.L.Rev. 724 (1973).

Sources

• The opinion on Google Scholar