Dillon v. Fibreboard Corp.

753 F. Supp. 898, 1988 U.S. Dist. LEXIS 17593, 1988 WL 220648
CourtDistrict Court, W.D. Oklahoma
DecidedDecember 2, 1988
DocketNo. CIV-87-1682-P
StatusPublished

This text of 753 F. Supp. 898 (Dillon v. Fibreboard Corp.) is published on Counsel Stack Legal Research, covering District Court, W.D. Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dillon v. Fibreboard Corp., 753 F. Supp. 898, 1988 U.S. Dist. LEXIS 17593, 1988 WL 220648 (W.D. Okla. 1988).

Opinion

ORDER

PHILLIPS, District Judge.

I. INTRODUCTION

Before the Court for consideration are the motions for summary judgment of defendants (1) Owens Illinois, Inc., (2) Pittsburgh Corning and (3) Fibreboard Corporation. The motions raise identical issues and therefore will be considered together.

[899]*899This is a products liability action in which the plaintiff, Lindell Dillon, claims his lung cancer was caused by his exposure to asbestos-containing products manufactured by these three defendants. Defendants contend they are entitled to summary judgment because plaintiff is unable to establish a causative link between his injury and the products manufactured by any of the moving defendants. Plaintiff responds with references to deposition testimony establishing that the asbestos-containing products of these defendants were at Lin-dell Dillon’s workplace during the time in which he worked there.

On November 23, 1988 the Court heard oral argument on these motions. Thereafter, having thoroughly reviewed the submissions of the parties and the authorities cited therein, and having carefully considered the oral arguments of the parties, the Court announced on November 30, 1988 that the defendants’ motions for summary judgment would be granted, and that a written order would be forthcoming.

Thus, for the reasons set forth below, defendants’ motions for summary judgment are GRANTED.

II. SUMMARY JUDGMENT STANDARDS

The facts presented to the court upon a motion for summary judgment must be construed in a light most favorable to the nonmoving party. Board of Education v. Pico, 457 U.S. 853, 864, 102 S.Ct. 2799, 2806, 73 L.Ed.2d 435 (1982); United States v. Diebold, Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). If there can be but one reasonable conclusion as to the material facts, summary judgment is appropriate. Only genuine disputes over facts which might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Finally, the movant must show entitlement to judgment as a matter of law. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985); Fed.R.Civ.P. 56(c).

Although the Court must view the facts and inferences to be drawn from the record in the light most favorable to the nonmoving party, even under this standard there are cases where the evidence is so weak that the case does not raise a genuine issue of fact. Burnette v. Dow Chemical Co., 849 F.2d 1269, 1273 (10th Cir.1988). As stated by the Supreme Court, “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 1).

The Supreme Court recently articulated the standard to be used in summary judgment cases, emphasizing the “requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis in original). A dispute is “genuine” if a reasonable jury could return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. The Court stated that the question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52, 106 S.Ct. at 2512. “The mere existence of a scintilla of evidence in support of the [party’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [party].” Id. at 252, 106 S.Ct. at 2512.

III. ANALYSIS

In order to prevail against a manufacturer on a products liability theory, the plaintiff “must prove that the product was the cause of injury; the mere possibility is not enough.” Kirkland v. General Motors, 521 P.2d 1353, 1363 (Okla.1974). Relying on Kirkland, Judge H. Dale Cook, Chief Judge of the Northern District of Oklahoma, recently granted defendants’ motions for summary judgment in a case remarkably similar to the case before this Court. See Smith v. Celotex Corp., et al., [900]*900No. 84-C-774-C (N.D.Okla. March 29, 1988). Other judges of the Northern District have likewise granted summary judgment in similar cases. See Bristol v. Fibreboard Cory, et al., No. 84-C-714-B (N.D.Okla. June 19, 1985), aff'd, No. 86-1783 (10th Cir. November 9, 1987); Case v. Fibreboard Cory, et al., No. 84-C-2-E (N.D.Okla. March 7, 1985), aff'd, No. 85-1476 (10th Cir. October 15, 1987). Judge Lee R. West of this district, however, has denied summary judgment in similar cases. See Stewart v. Eagle-Picher Industries, Inc. et al., No. CIV-87-1443-W (W.D.Okla. April 28, 1988); Kennedy v. Fibreboard Cory, et al., No. CIV-87-1996-W (W.D.Okla. May 27, 1988).

In Oklahoma, a plaintiff in asbestos-related products liability litigation may not rely on any form of collective liability as a theory for relief where the plaintiff is unable to identify specific tortfeasors. Case v. Fibreboard Corp., 743 P.2d 1062 (Okla.1987). The plaintiff must establish a causative link between the plaintiff’s injuries and the specific tortious acts of the defendant. Id. at 1067. Plaintiff must establish that there is a significant probability that the defendant’s acts were related to plaintiff’s injury. Id.

Both sides agree that the “significant probability” standard set forth in Case is the standard to be applied here.1 While neither the Oklahoma Supreme Court nor the Tenth Circuit has had an opportunity to address the precise issue which is before the Court in the instant case, the Fourth Circuit has addressed the issue, applying Maryland law. Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986). In Lohrmann the trial court directed a verdict in favor of three defendants, ruling as a matter of law that plaintiff’s evidence was insufficient to establish the element of causation between plaintiff’s asbestosis and the defendants’ products.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Diebold, Inc.
369 U.S. 654 (Supreme Court, 1962)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Richard D. Ellis v. El Paso Natural Gas Company
754 F.2d 884 (Tenth Circuit, 1985)
Kirkland v. General Motors Corporation
1974 OK 52 (Supreme Court of Oklahoma, 1974)
Case v. Fibreboard Corp.
1987 OK 79 (Supreme Court of Oklahoma, 1987)
Lohrmann v. Pittsburgh Corning Corp.
782 F.2d 1156 (Fourth Circuit, 1986)
Burnette v. Dow Chemical Co.
849 F.2d 1269 (Tenth Circuit, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
753 F. Supp. 898, 1988 U.S. Dist. LEXIS 17593, 1988 WL 220648, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dillon-v-fibreboard-corp-okwd-1988.