Griffin v. Allis-Chalmers Corp. Product Liability Trust

246 P.3d 483, 240 Or. App. 137, 2010 Ore. App. LEXIS 1665
CourtCourt of Appeals of Oregon
DecidedDecember 29, 2010
Docket070506242; A138278
StatusPublished
Cited by2 cases

This text of 246 P.3d 483 (Griffin v. Allis-Chalmers Corp. Product Liability Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffin v. Allis-Chalmers Corp. Product Liability Trust, 246 P.3d 483, 240 Or. App. 137, 2010 Ore. App. LEXIS 1665 (Or. Ct. App. 2010).

Opinion

SCHUMAN, P. J.

Plaintiff brought a products liability and negligence action against 52 defendants, claiming that, as suppliers or producers of raw asbestos or asbestos-containing products to which he was exposed, defendants were responsible for his development of mesothelioma.1 This appeal involves one of those defendants, Union Carbide Corporation (Union Carbide). Plaintiff alleged that Union Carbide supplied raw asbestos to U.S. Gypsum (USG) at USG’s manufacturing plant in Southgate, California (Southgate), and that plaintiff, a truck driver, was exposed to the asbestos when he was at the facility to load finished products. Plaintiffs theory was that the raw asbestos fibers were released into the air during the manufacturing process and that he inhaled enough of them to cause his disease. Union Carbide moved for summary judgment on the ground that plaintiff did not present evidence from which a reasonable juror could infer that asbestos fibers supplied by Union Carbide were present in the USG facility on any of the occasions when plaintiff was there and that, in any event, Union Carbide could not be liable for damage caused by its asbestos because it was raw material incorporated by USG into a finished product. The trial court granted Union Carbide’s motion without explanation. Plaintiff appeals. We reverse and remand.

Summary judgment is proper if the “pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact.” ORCP 47 C. No triable issue of fact exists if, “based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment.” Id. On review, we therefore state the facts in the light most favorable to the nonmoving party — here, plaintiff — and draw all reasonable inferences in plaintiffs favor. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997).

[141]*141Plaintiff worked as a long-haul truck driver from 1972 to 1983. Between 1972 and 1980, plaintiff made 15 to 20 trips to Southgate, two to four visits per year, to load finished products onto his flat-bed truck and deliver them nationwide. Plaintiff does not allege, nor would the evidence support the allegation, that he either delivered asbestos fibers from Union Carbide to the USG facility or loaded finished products that contained Union Carbide asbestos. There is evidence, however, that USG regularly received deliveries of raw asbestos fibers for use in its manufacturing processes; that, during 1972 and 1973, Southgate received over two million pounds of asbestos from Union Carbide, delivered in 44 shipments at approximately two-week intervals; that, during the same two-year period, plaintiff was present in the Southgate facility between four and eight times; that, during his visits, he stood inside the facility in a “loading area” that was not separated from the manufacturing area by any wall or other partition; that, from the loading area where he stood, plaintiff could see the manufacturing area; that, while present in the facility, he used an air hose to clean “dust” from his truck; and that the air in the plant was dusty.

After considerable discovery, Union Carbide moved for summary judgment. In response, and in addition to the evidence set out above, plaintiffs attorney submitted an ORCP 47 E affidavit2 averring that he had

“retained unnamed expert witnesses who are qualified, willing and available to testify that (a) [plaintiffs] work as a truck driver at U.S. Gypsum’s Southgate, California plant and his presence in proximity to others working at the Southgate plant, caused respirable asbestos fibers supplied by Union Carbide to be released into the air that he was breathing, and (b) [plaintiffs] exposures to Union Carbide’s asbestos product was a substantial factor in causing his mesothelioma.”

[142]*142Union Carbide contended nonetheless that plaintiff failed to establish a causal connection between his exposure to asbestos and Union Carbide asbestos fibers. In the alternative, Union Carbide argued that it cannot be held liable for plaintiffs injurious asbestos exposure under the “raw material supplier” doctrine. According to Union Carbide, that doctrine, adopted by this court in Hoyt v. Vitek, Inc., 134 Or App 271, 894 P2d 1225 (1995), immunizes Union Carbide, as a supplier of raw material, from any injuries sustained by plaintiff because, once the fibers were incorporated into a finished product manufactured by USG, Union Carbide owed no duty to warn plaintiff of any dangers related to the raw asbestos. The trial court took the parties’ arguments and submissions under advisement and subsequently, without explanation, granted Union Carbide’s motion. Plaintiffs appeal followed.

To survive a motion for summary judgment in a products liability and negligence case involving asbestos, a plaintiff needs to establish the presence of the defendant’s asbestos in the plaintiffs workplace; that fact is sufficient to create a jury question as to whether “ ‘the presence of that asbestos played a role in the occurrence of the plaintiffs injuries.’ ” Purcell v. Asbestos Corp., Ltd., 153 Or App 415, 423, 959 P2d 89, adh’d to as modified on recons, 155 Or App 1, 963 P2d 729 (1998), rev den, 329 Or 438 (1999) (quoting Ingram v. ACandS, Inc., 977 F2d 1332, 1344 (9th Cir 1992)). We applied that standard in Austin v. A.J. Zinda Co., 196 Or App 262, 101 P3d 819 (2004), rev den, 388 Or 374 (2005), and plaintiff contends that the present case merits the same outcome.

Austin was the plaintiffs appeal from an adverse summary judgment “on claims arising out of [the plaintiffs] alleged exposure to asbestos-containing products that [the defendant] distributed.” Id. at 268. The plaintiff argued that the record presented genuine issues of material fact as to whether the plaintiff was injuriously exposed to asbestos in various products that the defendant sold or distributed to the plaintiffs former employer. Id. In addition to evidence derived from depositions and affidavits of the plaintiff and other employees at the plaintiffs workplace, the plaintiffs attorney submitted an ORCP 47 E affidavit averring that

[143]*143“(1) the use of products known as flex connectors * * * comprised of [sic] asbestos textile material edged with metal strips would constitute an exposure to asbestos when handling, cutting, and installing, and upon disturbing the product after installation; and (2) [t]he use, removal and replacement of asbestos-containing products [including flex connectors] would release asbestos into the air throughout the workplace.”

Id. at 269-70 (internal quotation marks omitted; alterations in Austin).

The defendant asserted that the “plaintiff! ] could not proffer evidence that would permit a jury to infer, without impermissible speculation, that [the plaintiff] had been injuriously exposed to any product that [the defendant] had supplied.” Id. at 270. The defendant emphasized that the plaintiff “could not state whether the flex connectors that he handled, cut, and installed had been supplied by [the defendant] or [another distributing company].” Id. We reversed and remanded, explaining:

“[The defendant’s] argument misses the mark.

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246 P.3d 483, 240 Or. App. 137, 2010 Ore. App. LEXIS 1665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-allis-chalmers-corp-product-liability-trust-orctapp-2010.