Lee v. Celotex Corp.

764 F.2d 1489, 1985 U.S. App. LEXIS 20304
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 12, 1985
DocketNo. 84-8273
StatusPublished
Cited by18 cases

This text of 764 F.2d 1489 (Lee v. Celotex Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lee v. Celotex Corp., 764 F.2d 1489, 1985 U.S. App. LEXIS 20304 (11th Cir. 1985).

Opinions

RONEY, Circuit Judge:

Jack H. Lee, 59, died of mesothelioma of the lung, a cancer caused by asbestos. He had been exposed to asbestos fibers over a five-year work span. This suit alleged that part of that exposure was to asbestos dust emitted from products manufactured by defendant National Gypsum Company. The district court entered summary judgment for defendant on the ground that plaintiff had failed to show Lee’s exposure to any asbestos-containing product manufactured by National Gypsum. Sustaining the district court’s decision that to state a claim in such a case a plaintiff must show direct exposure to defendant’s asbestos-containing product, we affirm.

Lee filed this action against eleven defendants, including National Gypsum, alleging that he had been exposed to defendants’ asbestos-containing products while working as a boilertender from April 1941 to December 1945 in three different locations: Union Camp Paper Mill in Savannah, Georgia; the U.S. Naval Base on Cockspur Island near Savannah; and on board the USS Walton. After litigation commenced, Lee died of asbestos-related causes and his widow and executrix, Ouida W. Lee, was named as plaintiff.

At the trial level, this lawsuit was one of a group of eleven lawsuits alleging personal injury caused by the inhalation of asbestos dust. This group was denominated Group II and all eleven lawsuits were set for trial ad seriatim by the trial court. This technique of grouping lawsuits is prevalent in the asbestos litigation due to the volume. By systematically moving a group of similar lawsuits through court, the court conserves its resources, facilitates settlements, and allows parties their day in court if settlement is unreachable.

On appeal, this case was consolidated for oral .argument with two other appeals brought from summary judgments. Odum v. Celotex Corp., 764 F.2d 1486 (11th Cir.1985); Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir. 1985). The law applicable to each appeal is similar and the principles of law applied here are set forth in Blackston.

Brought on theories of negligence (failure to warn), breach of implied warranty, fraudulent concealment, conspiracy, and strict liability, toxic tort litigation such as this has many elements which must be proven by a plaintiff to obtain recovery. The major factual issue at the summary judgment stage in asbestos litigation is whether plaintiff was exposed to the products of the defendant. The major legal issue is the degree of evidence necessary to show that exposure. The controlling principle in this case is that as a threshold to pursuing the lawsuit against a particular defendant, the plaintiff must produce sufficient evidence to support a finding that plaintiff was directly exposed to that defendant’s asbestos-containing products. Blackston, 764 F.2d at 1482-1483.

Viewing the evidence submitted in the light most favorable to plaintiff and resolving all reasonable doubts about the facts in plaintiff’s favor, Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983); Impossible Electronics Techniques, Inc. v. Wackenhut Protective Systems, Inc., 669 F.2d 1026, 1031 (5th Cir. Unit B 1982), we hold that the defendant met its burden as moving party of showing the absence of a genuine issue of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); [1491]*1491FecLR.Civ.P. 56(c). The allegation that plaintiff was exposed to defendant’s asbestos-containing product is not supported by reasonable inferences arising from the undisputed facts, but is based on speculation and conjecture that renders them mere guesses or possibilities. Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1326 (11th Cir.1982).

For the purposes of the summary judgment motion, the district court accepted as true the testimony of Lee at a discovery deposition and a videotape deposition in March 1982, shortly before his death, and the interrogatory answers filed in the case. The bulk of this testimony and interrogatory answers focused in detail on Lee’s work with and exposure to the asbestos-containing products of other defendants. With regard to the products of all other defendants, Lee recalled specifically the names of the products, their descriptions, the job sites where he used them, and the procedure for applying these products. The testimony regarding defendant National Gypsum represented a departure from this pattern of specific recollection.

Lee testified that he had used and was exposed to a product called “Gold Bond cement.” Gold Bond was the name given a National Gypsum product line which included a number of asbestos-containing products and products without asbestos. Unlike every other product identified by Lee at the deposition, Gold Bond cement could not be linked by Lee to any of the three jobs in which he came into contact with asbestos-containing products. He did recall that Gold Bond cement came in a box marked with the Gold Bond label and white and gold diagonal stripes. He stated that he used Gold Bond cement in relatively small portions “as an insulation material and as a sealer” in short-term emergency situations. He did not know whether Gold Bond cement contained asbestos, but he testified that he had inhaled dust from the cement in the course of applying it. He recalled applying Gold Bond cement as a sealant on pipes and for patchwork on sleeves, “mostly on steam or minor repairs.”

In its February 14, 1984 Memorandum Opinion finding that there was no genuine issue of material fact and granting National Gypsum’s motion for summary judgment, the district court stated:

The plaintiff’s decedent, Jack Lee, testified prior to his death that he was around a product known as Gold Bond cement, that the product was used as a sealant, and that the product came in a box with gold and white diagonal stripes. Mr. Lee never identified Gold Bond Joint Compound.
Gold Bond Joint Compound, which, according to the documents submitted by the plaintiff, came in sacks, not boxes, contained asbestos. However, Gold Bond Joint Cement, which, according to the documents submitted by the plaintiff, came in a box, did not contain asbestos.

This order was based at least in part on an erroneous finding, as National Gypsum concedes that Gold Bond Joint Cement did contain asbestos. The parties subsequently called the district court’s attention to its error regarding the asbestos content of Gold Bond Joint Cement. On February 27, 1984, plaintiff filed a motion for reconsideration of the district court’s February 14 order. Plaintiff attached to her motion the excerpts from Lee’s deposition and the interrogatory answers of National Gypsum. Attached to the interrogatories was a list of Gold Bond Joint Treatment Products, a line of asbestos-containing National Gypsum products used primarily in building construction to fill in wallboard at joints and cover nail holes.

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Lee v. Celotex Corporation
764 F.2d 1489 (Eleventh Circuit, 1985)

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Bluebook (online)
764 F.2d 1489, 1985 U.S. App. LEXIS 20304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-celotex-corp-ca11-1985.