September 24, 1993 UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 92-2263 MONICA SANTIAGO, Plaintiff, Appellant,
v.
SHERWIN WILLIAMS COMPANY, ET AL., Defendants, Appellees.
ERRATA SHEET
Please make the following correction in the opinion in the above case released on September 10, 1993:
Page 7, footnote 4: change the footnote to read as follows:
Judge Breyer dissents. In his view, despite the equitable arguments against certification in this case, in light of the importance of the matter this panel should certify the issue to the Supreme Judicial Court.
United States Court of Appeals For the First Circuit
No. 92-2263
MONICA SANTIAGO,
Plaintiff, Appellant,
SHERWIN WILLIAMS COMPANY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Breyer, Chief Judge,
Friedman,* Senior Circuit Judge,
and Stahl, Circuit Judge
Jonathan Shapiro, with whom Stern, Shapiro, Rosenfeld &
Weissberg, Robert J. Doyle, Kehoe, Doyle, Playter & Novick, Neil T.
Leifer, Thornton, Early & Naumes, Judith Somberg, Johnson & Somberg,
Arthur Bryant, and Trial Lawyers for Public Justice, were on brief for
appellant. Paul Michael Pohl, with whom Charles H. Moellenberg, Jr., Jones,
Day, Reavis & Pogue, Thomas J. Griffin, Jr., Loretta Smith, Erik H.
Aldeborgh, II, Goodwin, Procter & Hoar, Dale A. Normington, were on
brief for Sherwin-Williams Company, Rory FitzPatrick, Meghan H.
Magruder, Bingham, Dana & Gould, Donald A. Bright, were on brief for
Atlantic Richfield Company, Michael Nilan, G. Marc Whitehead, Janie S.
Mayeron, Popham, Haik, Schnobrich & Kaufman, Ltd., Thomas V. Urmy,
Shapiro, Grace & Haber, were on brief for SCM Corporation, Donald E.
Scott, John M. Walker, Kirkland & Ellis, David B. Garten, and Janet D.
Smith, were on brief for NL Industries, Inc., and Mary Morrissey
Sullivan, Richard Nahigian, and Sullivan, Sullivan & Pinta, were on
brief for Lead Industries Association. David G. Owen on brief for The Business Roundtable and Chamber of
Commerce of the United States of America, amici curiae. Stephen S. Ostrach, Emily R. Livingston and New England Legal
Foundation on brief for Associated Industries of Massachusetts and New
England Legal Foundation, amici curiae.
September 10, 1993
*Of the Federal Circuit, sitting by designation.
STAHL, Circuit Judge. In this appeal, plaintiff-
appellant Monica Santiago challenges the district court's
entry of summary judgment against her and in favor of
defendants-appellees.1 In so doing, plaintiff advances
three arguments: (1) the legal issues in this appeal should
be certified to the Massachusetts Supreme Judicial Court
("SJC"); (2) the district court erred in rejecting
plaintiff's market share liability argument; and (3) the
court erred in rejecting plaintiff's concert of action claim.
After carefully reviewing each of plaintiff's arguments, we
affirm.
I.
BACKGROUND
Plaintiff was born on November 9, 1972. From the
time of her birth until 1978, she and her family resided at
20 Leston Street in Boston. Plaintiff alleges that, during
her period of residence, she ingested lead paint that had
been applied in layers to the walls and woodwork of her home
at various times between 1917, the year of the building's
construction, and 1970. The evidence reveals that
1Defendants are Sherwin-Williams Company, NL Industries, Inc., Eagle-Picher Industries, Inc., Atlantic Richfield Corporation (successor to International Smelting & Refining Company), and SCM Corporation (successor to Glidden Company). On January 7, 1991, defendant Eagle-Picher filed for bankruptcy in Ohio, thus automatically staying this action against it. See 11 U.S.C. 362.
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plaintiff's blood had highly elevated levels of lead by the
time plaintiff was one year of age, that the lead reached
emergency levels by July 1976, and that, as a consequence,
plaintiff had to undergo chelation therapy2 in order to
remove the lead from her body. Although plaintiff's early
development appeared to progress normally, she has been
diagnosed with a hyperactivity-attention disorder and motor
skill difficulties which her medical experts attribute to
lead poisoning.
Plaintiff initiated this action in November 1987,
contending that defendants, or their predecessors in
interest, manufactured and marketed all, or virtually all, of
the white lead used in the lead paints sold in the United
States between 1917 and 1970. Her complaint set forth claims
of negligence, breach of warranty, and concert of action.
Jurisdiction was premised upon diversity of citizenship. See
28 U.S.C. 1332.
Plaintiff could not and cannot identify either
which, if any, of the defendants are the source of the lead
she ingested or when the alleged injury-causing paint may
have been applied to the walls and woodwork of her childhood
2Chelation therapy is a procedure whereby a person with lead poisoning is given chemicals that bind with the lead, enabling the body to excrete it more rapidly.
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home.3 She has, however, introduced (1) evidence in the
form of expert testimony that lead paint "was at minimum a
substantial contributing factor of her lead poisoning;" (2)
evidence demonstrating that all of the defendants produced
white lead for significant portions of the period between
1917 and 1970; (3) evidence that almost all of the white lead
produced for paint between 1917 and 1970 was manufactured by
defendants; and (4) evidence that, between 1930 and 1945, all
of the defendants, as members of a trade association known as
the Lead Industries Association ("LIA"), "simultaneously
coordinat[ed] promotional campaigns to increase white lead
consumption in paint and . . . work[ed] to neutralize the
growing public concern about lead paint poisoning." On the
basis of this evidence, plaintiff sought to dispense with the
identification requirement and hold defendants liable under a
market share theory. Plaintiff further argued that
defendants were liable for her injuries because of their
concerted marketing actions as members of the LIA.
By memorandum and order dated January 13, 1992, the
district court rejected plaintiff's market share claim as a
matter of Massachusetts law. In so doing, the court ruled
3There is no direct evidence that plaintiff actually ate lead
paint. There is, moreover, record evidence suggesting that, in addition to lead paint, plaintiff could have been exposed to airborne lead, lead from food and water, and/or lead from soil and dust. Indeed, there is evidence indicating that plaintiff's neighborhood, including the soil around her home, was heavily contaminated with lead.
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that even if the SJC would recognize market share liability
under some scenario, it would not do so if presented with the
undisputed facts of this case. See generally Santiago v.
Sherwin-Williams Co., 782 F. Supp. 186 (D. Mass. 1992). By
memorandum and order dated July 2, 1992, the court further
ruled that plaintiff's concert of action claim failed as a
matter of Massachusetts law because plaintiff could not
identify which of the defendants actually had committed the
tort. See generally Santiago v. Sherwin-Williams Co., 794 F.
Supp. 29 (D. Mass. 1992). It is from these rulings that
plaintiff now appeals.
II.
DISCUSSION
A. Certification
As an initial matter, plaintiff has requested that
we certify to the SJC questions regarding the viability of
market share liability and concert of action as theories of
recovery in light of the facts of this case. We note that
plaintiff first requested certification in this court, and
explicitly stated her opposition to certification at the
district court level. Now, having lost below, plaintiff has
reversed her position. Unsurprisingly, defendants oppose
plaintiff's certification request.
For reasons that are largely self-explanatory, we
have held that "one who chooses to litigate [her] state
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action in the federal forum (as plaintiff did here) must
ordinarily accept the federal court's reasonable
interpretation of extant state law rather than seeking
extensions via the certification process." Croteau v. Olin
Corp., 884 F.2d 45, 46 (1st Cir. 1989); see also 17A Charles
A. Wright, Arthur R. Miller, and Edward H. Cooper, Federal
Practice and Procedure 4248, 176 (2d ed. 1988) (courts
"should be slow to honor a request for certification from a
party who chose to invoke federal jurisdiction"). The
concerns about fundamental fairness and judicial economy that
animate this general rule make us considerably less inclined
to depart from it when the plaintiff did not request
certification before the district court. See Croteau, 884
F.2d at 46.
Here, as will be demonstrated below, the district
court's interpretation of Massachusetts law was eminently
reasonable. Furthermore, plaintiff, after initially deciding
to eschew her prerogative to file this action in state court,
actively made her opposition to certification known to the
district court. In light of these facts, and given the
further fact that it has been over five years since these
federal proceedings were initiated, it would be extremely
unfair to defendants if we were to allow plaintiff to
relitigate the issues at the heart of this lawsuit.
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Accordingly, plaintiff's request for certification is
denied.4
B. Standard of Review
Having dispensed with plaintiff's certification
request, we proceed to delineate the parameters of our
examination. Summary judgment allows courts to "pierce the
boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required."
Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st
Cir. 1992), cert. denied, 113 S. Ct. 1845 (1993). It should
be granted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(c).
A fact is only material if it has "the potential to
affect the outcome of the suit under the applicable law."
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st
Cir. 1993). However, our reading of the facts, as derived
from the record, is always done "`in the light most amiable
to the nonmovant. . . .'" Lawrence v. Northrop Corp., 980
F.2d 66, 68 (1st Cir. 1992) (quoting Garside v. Osco Drug,
4Judge Breyer dissents. In his view, despite the equitable arguments against certification in this case, in light of the importance of the matter this panel should certify the issue to the Supreme Judicial Court.
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Inc., 895 F.2d 46, 48 (1st Cir. 1990)). This includes
"indulg[ing] all reasonable inferences" in the nonmovant's
favor. Id.
Our review of a summary judgment ruling is plenary.
Garside, 895 F.2d at 48. Furthermore, we are not limited to
the reasoning employed by the district court; instead, we may
"affirm the entry of summary judgment on any independently
sufficient ground made manifest by the record." United
States v. One Parcel of Real Property, 960 F.2d 200, 204 (1st
Cir. 1992).
In addition to examining the facts, a court passing
on a summary judgment motion or reviewing a summary judgment
determination must, of course, consider the applicable law.
When a plaintiff invokes diversity jurisdiction to bring a
state law claim in federal court, this survey is somewhat
circumscribed, for it is settled that, in ordinary
circumstances, a plaintiff who "selects a federal forum in
preference to an available state forum may not expect the
federal court to steer state law into unprecedented
configurations." Martel v. Stafford, 992 F.2d 1244, 1247
(1st Cir. 1993); see also Ryan v. Royal Ins. Co., 916 F.2d
731, 744 (1st Cir. 1990) (rejecting a diversity plaintiff's
attempt to stretch New York law to new frontiers without
providing a "well-plotted roadmap showing an avenue of relief
that the state's highest court would likely follow"); Porter
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v. Nutter, 913 F.2d 37, 41 (1st Cir. 1990) (plaintiff who
seeks out a federal venue in a diversity action should expect
"unadventurous" interpretations of state law). Mindful of
these strictures, we turn to plaintiff's claims.
C. Market Share Liability
Plaintiff argues that the district court erred in
granting defendants summary judgment on her claim for market
share liability. In so doing, she concedes that the SJC has
never explicitly endorsed a market share liability theory of
recovery, and further recognizes that the court rejected a
certain species of market share liability advanced by
plaintiffs in a DES class action. See Payton v. Abbott
Labs., 437 N.E.2d 171, 188-90 (Mass. 1982).5 Nonetheless,
5In Payton, an action brought by a class of women whose
mothers ingested DES while pregnant with them, the United States District Court for the District of Massachusetts certified to the SJC the following question:
Assuming that the evidence does not warrant a conclusion that the defendants conspired together, or engaged in concerted action, or established safety standards through a trade association, may the defendant manufacturers, who probably supplied some of the DES ingested by the mothers of the plaintiff class, be held liable to members of the plaintiff class when neither the plaintiffs nor the defendants can identify which manufacturer's DES was ingested by which mothers?
Id. at 188. The SJC ruled that it could not answer the
question in the form stated because the question "d[id] not explicitly assume that the plaintiffs will be able to establish the negligence of . . . defendants." Id. However,
as is discussed more fully below, the court did set forth its general views on market share liability. In so doing, it rejected the theory of market share liability advanced by
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plaintiff asserts that certain dicta in Payton indicate that
her claim would be approved by the SJC.6 We cannot agree.
As the SJC has noted, "[i]dentification of the
party responsible for causing injury to another is a
longstanding prerequisite to a successful negligence action."
Payton, 437 N.E.2d at 188. However, some courts, cognizant
of the modern industrial reality of fungible goods which may
harm consumers but which cannot be traced to specific
producers, have relaxed this identification requirement in
certain negligence and product liability cases. In these
cases, the courts have allowed plaintiffs who are unable to
identify the particular defendant who actually manufactured
the harm-causing product to pursue their claims so long as
they are able to prove both that the product caused the harm
and that the defendants were market suppliers at the time
plaintiff had her harmful encounter with the product. See,
plaintiffs in that case. Id. at 189.
6In concluding its explicit rejection of the form of market share liability plaintiffs sought to impose, the Payton court
stated:
That is not to say that on an adequate record this court would not recognize some relaxation of the traditional identification requirement in appropriate circumstances so as to allow recovery against a negligent defendant of that portion of a plaintiff's damages which is represented by the defendant's contribution of DES to the market in the relevant period of time.
Id. at 190.
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e.g., Sindell v. Abbott Labs., 607 P.2d 924, 936-38 (Cal.),
cert. denied, 449 U.S. 912 (1980). If a plaintiff prevails
in such a case, courts typically have limited each
defendant's liability to that portion of the plaintiff's
judgment which reflects the share of the market supplied by
the defendant at the time of said encounter. See, e.g., id.,
607 P.2d at 937. Market share liability has most often been
recognized in the context of DES cases. See, e.g., McCormack
v. Abbott Labs., 617 F. Supp. 1521 (D. Mass. 1985); McElhaney
v. Eli Lilly & Co., 564 F. Supp. 265 (D.S.D. 1983); Conley v.
Boyle Drug Co., 570 So.2d 275 (Fla. 1990); Hymowitz v. Eli
Lilly & Co., 539 N.E.2d 1069 (N.Y.), cert. denied, 493 U.S.
944 (1989); Martin v. Abbott Labs., 689 P.2d 368 (Wash.
1984); Collins v. Eli Lilly & Co., 342 N.W.2d 37 (Wis.),
cert. denied, 469 U.S. 826 (1984). But see Ray v. Cutter
Labs., 754 F. Supp. 193 (M.D. Fla. 1991) (product contained
HIV virus); Morris v. Parke, Davis & Co., 667 F. Supp. 1332
(C.D. Cal. 1987) (plaintiff harmed by DPT vaccine); Smith v.
Cutter Biological, Inc., 823 P.2d 717 (Haw. 1991) (product
contained HIV virus).
As noted above, the SJC did have occasion to
consider, by means of a certified question, the viability of
one form of market share liability in a DES case. See
Payton, 437 N.E.2d at 188-90. In Payton, plaintiffs argued
for market share liability with two significant twists: (1)
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that they be allowed to proceed against and recover full
damages from only six named DES manufacturers despite the
fact that there was a larger number of potential tortfeasors,
and (2) that defendants should be prohibited from presenting
exculpatory proof. See id. at 188-89. The court rebuffed
these arguments, holding that two articulated reasons for the
identification requirement, (1) that wrongdoers be held
liable only for the harm they have caused, and (2) that
tortfeasors be separated from innocent actors, would be
disserved by the adoption of plaintiffs' theory. Id.
Accordingly, as we have stated, the SJC rejected plaintiffs'
version of market share liability. Id. at 189.
We accept for the sake of argument plaintiff's
assertions (1) that the SJC would, in some circumstances,
relax the identification requirement and allow a plaintiff to
recover under a market share theory; (2) that the SJC would
recognize market share liability in the lead poisoning
context; (3) that plaintiff has introduced sufficient
evidence for a reasonable factfinder to infer that her
injuries resulted from lead poisoning; (4) that lead paint
was, as one of plaintiff's experts puts it, at least "a
substantial contributing factor of her lead poisoning"; and
(5) that defendants, who were mere bulk suppliers of white
lead and did not manufacture or market the alleged injury-
causing paint, could still be adjudged to have acted
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negligently towards plaintiff. Nonetheless, we believe that
the SJC's professed interest in both holding wrongdoers
liable only for the harm they have caused and in separating
tortfeasors from innocent actors is fatal to plaintiff's
claim.
Simply put, allowing plaintiff's market share claim
to proceed despite plaintiff's inability to pinpoint with any
degree of precision the time the injury-causing paint was
applied to the house on Leston Street would significantly
undermine both of the articulated reasons for the
identification requirement. The record before us reflects
that the layers of lead paint were applied to the house's
walls at various undeterminable points in time between 1917
and 1970.7 It also indicates that defendants' contributions
to the lead paint market varied significantly during this
time period. Given these facts, it is difficult to discern
the basis upon which any market share determination would be
premised.8 At any rate, it is evident that the adoption of
7Plaintiff did introduce expert testimony attempting to date one of the multi-layered paint samples taken from the house. However, this expert was only able to say that one layer of lead paint probably was applied between 1933 and 1939, and that a second layer of lead paint was probably applied between 1955 and 1969.
8Apparently, plaintiff would have market share determined according to an average of defendants' market shares over time. Because such an approach would virtually guarantee a deviation between liability and actual culpability for all the named defendants, we are confident that the SJC would look upon it with disfavor.
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plaintiff's theory would not be consistent with the SJC's
admonition that wrongdoers be held liable only for the harm
they have caused.
Moreover, several of the defendants were not in the
white lead pigment market at all for significant portions of
the period between 1917 and 1970, and therefore may well not
have been market suppliers at the time the injury-causing
paint was applied to the walls of plaintiff's home. This, of
course, raises a substantial possibility that these
defendants not only could be held liable for more harm than
they actually caused, but also could be held liable when they
did not, in fact, cause any harm to plaintiff at all. Under
plaintiff's theory, therefore, tortfeasors and innocent
actors would not be adequately separated.
Finally, we note that the dicta relied upon by
plaintiff indicates that a relaxation of the identification
requirement to allow recovery against a negligent defendant
would only be appropriate to the extent that the recovery
represents "that portion of a plaintiff's damages which is
represented by that defendant's contribution . . . to the
market in the relevant period of time." Id. at 190 (emphasis
supplied). Here, as noted, plaintiff cannot identify with
adequate specificity the relevant period of time. Thus, it
appears that plaintiff's theory does not fall within even the
vague parameters mentioned in the SJC's dicta.
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In sum, allowing plaintiff to recover her full
damages from the five named defendants despite her inability
to specify the time of their negligence may well, on this
record, do violence to the SJC's stated interest in ensuring
that wrongdoers be held liable only for the harm they have
caused. It also would create a substantial possibility that
tortfeasors and innocent actors would be impermissibly
intermingled. The SJC has made it abundantly clear that it
would not countenance either result. Accordingly, mindful
that federal courts sitting in diversity at a plaintiff's
election ought not "steer state law into unprecedented
configurations," see Martel, 992 F.2d at 1244, we affirm the
district court's grant of summary judgment to defendants on
plaintiff's market share claim.9
D. Concert of Action
Finally, plaintiff contends that the district court
erred in granting defendants summary judgment on her concert
of action claim. Again, we cannot agree.
9We are aware that the United States District Court for the District of Massachusetts, relying on the dicta in Payton,
approved a market share theory of recovery in a DES case. See McCormack, 617 F. Supp. at 1525-26. We note simply that
the McCormack case was never appealed and that we have not
had, nor do we now have, occasion to pass on the correctness of its holding. We further note that the aspect of this case upon which we rest our preclusion of plaintiff's market share claim -- plaintiff's inability to identify the time of defendants' alleged negligence -- was not present in McCormack.
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Plaintiff's concert of action claim is premised
upon the theory of liability set forth in Section 876 of the
Restatement (Second) of Torts (1977). In relevant part,
Section 876 (entitled "Persons Acting in Concert") provides:
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself . . . .
In isolated circumstances, Massachusetts courts have
indicated their willingness to permit recovery under theories
tracking the language of Section 876. E.g., Orszulak v.
Bujnevicie, 243 N.E.2d 897, 898 (Mass. 1969) ("Persons who
race automobiles on a public way are liable in negligence for
injuries caused by one of them."); Nelson v. Nason, 177
N.E.2d 887, 888 (Mass. 1961) (similar).
In essence, plaintiff claims that, "in light of the
substantial medical evidence of the unreasonable risk that
[lead paint] posed to young children[,]" certain of
defendants' actions as members of the LIA between 1930 and
1945 were tortious. Specifically, plaintiff points to
defendants' "initiat[ion of] nationwide promotional
campaigns, encourage[ment of] the use of white lead in house
paint through extensive advertising, [attempts] to undermine
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the growing medical evidence of the danger of lead paint, and
work[] to prevent the enactment of governmental regulations
which would have restricted the use of white lead in painting
buildings."10 What is utterly lacking from her
presentation, however, is any evidence that these actions,
during the fifteen year period she identifies, had any role
in causing lead paint to be applied to the walls of her
childhood home. Even if we assume that at least some of the
lead paint consumed by plaintiff was applied to her home
during the period of defendants' alleged concerted actions,
there is no evidence that the application resulted from these
actions, or that it would not have taken place in the absence
of these actions. Cf. Roberts v. Southwick, 614 N.E.2d 659,
663 (Mass. 1993) (endorsing instruction defining proximate
cause as "that which, in continuous sequence, unbroken by a
new cause, produces an event, and without which the event
would not have occurred"). Thus, it is our view that the
factfinder could only have based a causation finding on
speculation or conjecture. Clearly, this is inappropriate
under Massachusetts law. See Goffredo v. Mercedes-Benz Truck
Co., 520 N.E.2d 1315, 1317-18 (Mass. 1988); Gynan v. Jeep
Corp., 434 N.E.2d 688, 691 (Mass. App. Ct.) (plaintiff "could
not leave causation merely to speculation and conjecture"),
10Plaintiff acknowledges, however, that she has no evidence that defendants ever concealed information or introduced false research into public debate.
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review denied, 440 N.E.2d 1177 (Mass. 1982); see also W. Page
Keeton et al., Prosser and Keeton on Torts 41, at 269 (5th
ed. 1984) ("The plaintiff must introduce evidence which
affords a reasonable basis for the conclusion that it is more
likely than not that the conduct of the defendant was a cause
in fact of the result. A mere possibility of such causation
is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best
evenly balanced, it becomes the duty of the court to direct a
verdict for the defendant.").
We acknowledge that the question of causation is
generally for the factfinder. See Mullins v. Pine Manor
College, 449 N.E.2d 331, 338 (Mass. 1983). Where there is no
evidence from which the factfinder, without speculating, can
find causation, however, the case is appropriately kept from
the jury. See Goffredo, 520 N.E.2d at 1318. We believe that
this is such a case. Accordingly, we affirm the district
court's decision to award defendants summary judgment on
plaintiff's concert of action claim.11
11We recognize that the district court based its summary judgment decree on the fact that plaintiff was unable to identify any of the defendants specifically as tortfeasors. See Santiago, 794 F. Supp. at 33. We also recognize that
plaintiff has spent much effort challenging this ruling. As noted above, however, we are free to affirm the entry of summary judgment on any independently sufficient ground made manifest by the record. One Parcel of Real Property, 960
F.2d at 204. Because we do so here, we do not reach the correctness of the district court's decision.
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III.
CONCLUSION
Because certification to the SJC of the issues
raised in this appeal would be inappropriate, plaintiff's
request therefor is denied. Furthermore, because the
district court correctly ruled that plaintiff's market share
and concert of action claims fail as a matter of law, we
affirm its granting of defendants' motions for summary
judgment thereon.
Affirmed. Costs to appellees.
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