William L. Tippens, Deceased, Nell P. Tippens, Individually and as Widow of William L. Tippens v. The Celotex Corporation

815 F.2d 66

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 20, 1987
• Docket: 84-8312
• Status: Published

Opinions

PER CURIAM:

Celotex Corporation petitioned this Court for rehearing based upon (i) this Court’s failure to examine or follow Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985), and (ii) Celotex’s unfortunate misinterpretation of the meaning of footnote 4 of our original opinion. Both points of error represent an incorrect reading of our holding which we feel compelled to address in order to avoid a similar misinterpretation by others.

This Court is clearly familiar with our holding in Blackston requiring a plaintiff to show actual exposure to asbestos-containing products. However, Blackston represents the proper analysis of a summary judgment on the merits, which we do not reach in our opinion.

The District Court’s grant of summary judgment was reversed for its failure to consider all the evidence before the Court. The District Court improperly disregarded an affidavit as a sham which was not in direct conflict with the affiant’s deposition testimony and did not meet this Court’s definition of a sham affidavit. Our holding in no way expresses any opinion whether the plaintiff can survive a motion for summary judgment which properly considers all the evidence, or a motion for a directed verdict at the close of plaintiff’s or defendant’s evidence, or a motion for j.n.o.v. because the litigation has not yet progressed far enough for a determination to be made on these issues. It merely prohibits the District Court from disregarding this affidavit because it requires a determination of credibility and an assessment of the probative value of evidence.

Celotex likewise misinterprets footnote 4 in our opinion as somehow exhibiting a bias or prejudice against a party that actively exercises its rights of appeal. This interpretation is not only incorrect, it is distressing. The footnote merely points out the extensive authoritative case law on summary judgment that has evolved from the massive asbestos litigation, of which Celo-tex Corporation has been an original named defendant, which could in itself serve as an extensive treatise on summary judgment. The fact that Celotex was not involved on the appeal of two of the cited cases does not detract from the point made by this Court, but does demonstrate that this Court in no way based this decision or any other on who brought the appeal.

In consideration of the above which does not modify, but merely explains our original holding, Celotex’s Petition for Rehearing is DENIED.