David Martin, Plaintiff-Appellant, v. Cincinnati Gas and Electric Company, General Motors Corporation, General Electric Company, Defendants-Appellees.
No. 07-6385
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 27, 2009
09a0061n.06
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY.
BEFORE: SILER, and McKEAGUE, Circuit Judges, and LUDINGTON, District Judge.*
McKEAGUE, Circuit Judge. Dennis Martin (“Mr. Martin“) died from malignant mesothelioma on March 22, 2002. His son, David Martin (“Plaintiff“), serving as executor of his father‘s estate, filed a complaint based on asbestos exposure in Kentucky state court against nine defendants. Defendants removed the case to the Eastern District of Kentucky based on diversity.
After various defendants settled or were dismissed from the suit, claims remained against Cincinnati Gas & Electric Company (“CG&E“), General Electric (“GE“), and General Motors (“GM“). The claims against CG&E and GE were based on asbestos that Mr. Martin‘s father, Vernon Martin, brought home on his work clothes while working for CG&E. The claim against GM was
I. BACKGROUND
Mr. Martin‘s father worked for CG&E for thirty-eight years. He began working for CG&E in 1951 as a laborer. Within a year, he was promoted to mechanic. His work at CG&E during this period involved underground power lines. The work brought him into contact with fireproofing that contained asbestos. In the 1950‘s, he worked with fireproofing every month or two. One power line in particular, the “66,” was treated only with asbestos. Mr. Martin‘s father worked on the 66 “[q]uite a few” times. In 1963, he was promoted to equipment operator, where he operated heavy excavating machinery. In 1973, he was promoted to senior mechanic in underground utilities. The district court found that his work with asbestos lasted from 1951 to 1963. Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 WL 2682064, at *1-2 (E.D. Ky. Sept. 5, 2007). Plaintiff does not challenge that finding on appeal. As Mr. Martin was born in 1952, the relevant asbestos exposure occurred between 1952 and 1963.
Internal memoranda indicate that CG&E used asbestos products. Several documents from CG&E also indicate that GE provided asbestos products to CG&E. A memo from 1948 notes an
CG&E provided lockers and showers for their employees. After work, Mr. Martin‘s father would sometimes shower and change at CG&E. Other times, he would go directly home. When he got home, he would most often change and leave his work clothes in the basement laundry room. Occasionally, he would do yard work in his work clothes. Mr. Martin‘s father recalls Mr. Martin sometimes sitting on his lap or hugging him while he was still in his work clothes.
Mr. Martin‘s mother, Mary Helen, did the laundry. Mr. Martin and his cousin, Steve Boesing (“Mr. Boesing“), would often play in the basement. The laundry room, however, was in a separate room in the basement, “way over on the far side” from where the children played. This proximity to his father‘s work clothes is the basis for Mr. Martin‘s first potential exposure to asbestos.
After serving in the Navy, Mr. Martin held a variety of jobs in the Kentucky area. Many of these jobs involved ships; others involved chemical manufacture. The record does not include testimony regarding asbestos exposure during Mr. Martin‘s time at these other positions. Mr. Boesing frequently worked with Mr. Martin. At many of these jobs, Mr. Boesing remembered no exposure to anything that might have been asbestos. This was not the case at Valley Line Company, where Mr. Martin was employed from 1979 to 1984 as a welder and a mechanic. Mr. Boesing also worked at Valley Line, and he recalled asbestos in a variety of forms.
Mr. Boesing recalled working with products made with asbestos during periodic engine overhauls. Eighty-five percent of the engines that Mr. Martin and Mr. Boesing worked on were manufactured by EMD, a GM subsidiary. During the overhauls, Valley Line employees would
During the course of work at Valley Line, Mr. Boesing and Mr. Martin also frequently used gaskets. There were two types of gaskets: precut and custom. Precut gaskets were made by EMD. When Valley Line employees made custom gaskets, they did so with materials provided by a different company, Durabla. The new gaskets used during engine overhauls were the precut EMD gaskets. They were installed as provided; at no point did Valley Line employees cut into the new EMD gaskets. Removing old gaskets created a visible white dust. Mr. Boesing did not know if the gaskets replaced during overhauls were made by GM.
Mr. Martin and Mr. Boesing also replaced power packs on ship engines. Part of this work involved removing old gaskets, which created dust. There were also fireproofing blankets, made by Triangle Insulation. Mr. Boesing believed the blankets contained asbestos. He noted that employees would cut portions of these blankets to use when welding in sensitive areas. Additionally, the ship engine rooms had asbestos pegboard walls, but the walls were rarely moved and so produced little dust. The hot water lines also had white insulation. Mr. Martin‘s work with these materials at Valley Line constitutes his second potential exposure to asbestos.
After Plaintiff filed his complaint and the case was removed to the Eastern District of Kentucky, motions for summary judgment ensued. The district court granted GM‘s motion because “there is no evidence that GM manufactured or supplied” the relevant insulation. Martin v. Cincinnati Gas & Elec. Co., No. 02-201-DLB, slip op. at 14 (E.D. Ky. May 25, 2006). The district court granted summary judgment for CG&E and GE because neither CG&E nor GE had a legal duty to Mr. Martin. Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 WL 2682064, at *9 (E.D. Ky. Sept. 5, 2007). This appeal followed.
II. ANALYSIS
A. Standard of Review
As this is a diversity action, Kentucky substantive law applies. Gahafer v. Ford Motor Co., 328 F.3d 859, 861 (6th Cir. 2003). Procedurally, federal standards for summary judgment govern. Hayes v. Equitable Energy Res. Co., 266 F.3d 560, 566 (6th Cir. 2001).
This court reviews a district court‘s grant of summary judgment de novo. Nichols v. Moore, 477 F.3d 396, 398 (6th Cir. 2007). At the summary judgment stage, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Jones v. Potter, 488 F.3d 397, 403 (6th Cir. 2007). In order to survive summary judgment, the nonmovant must meet the movant‘s motion with “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A “scintilla of evidence” will not suffice. Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986).
B. GM Products Were Not a Substantial Factor in Causing Mr. Martin‘s Mesothelioma
Under Kentucky law, causation is generally a question of fact for the jury. Id. at 872. However, causation should not go to the jury unless the inference of causation is reasonable: it must “indicate the probable, as distinguished from a possible cause.” Id. at 873 (quoting Briner v. Gen. Motors Corp., 461 S.W.2d 99, 101 (Ky. Ct. App. 1970)); see also Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d 631, 633 (Ky. Ct. App. 1972).
As the district court cogently summarized the evidence, Plaintiff has not established that GM products contained asbestos or that Plaintiff was ever exposed to any asbestos from GM products. At best, Mr. Boesing‘s deposition establishes that Mr. Martin used precut gaskets made by a GM subsidiary and that GM gaskets were used on the engines. Yet Mr. Boesing stated that the precut gaskets did not require any cutting and that the asbestos insulation did not come from GM. Indeed, the sources that Mr. Boesing believed were most likely to contain asbestos were not GM products: the custom gaskets, which were made by Durabla; the insulation on the engines, which was installed by the shipyard; and the fireproof blankets, which were made by Triangle Insulation. The deposition thus does not provide a reasonable inference that Mr. Martin was exposed to asbestos from GM products.
Plaintiff also argues that, because mesothelioma is a progressive disease, any exposure is a substantial cause. This argument would make every incidental exposure to asbestos a substantial factor. Yet one measure of whether an action is a substantial factor is “the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it.” RESTATEMENT (SECOND) OF TORTS § 433(a). The Sixth Circuit responded to a similar argument in a maritime action by stating that an expert‘s opinion that “every exposure to asbestos, however slight, was a substantial factor” was insufficient because it would render the substantial factor test “meaningless.” Lindstrom v. A-C Prod. Liab. Trust, 424 F.3d 488, 493 (6th Cir. 2005).
As discussed above, Plaintiff did not proffer evidence that supports a reasonable inference of exposure from GM products, much less that GM products were a substantial factor in causing Mr. Martin‘s mesothelioma.
C. Neither CG&E nor GE Had a Legal Duty to Mr. Martin
For the claims against CG&E and GE, the analysis shifts from causation to duty. Duty presents a question of law for the judge to decide. Pathways, Inc. v. Hammons, 113 S.W.3d 85, 89 (Ky. 2003). In Kentucky, there is a universal duty of care which requires “every person . . . to exercise ordinary care in his activities to prevent foreseeable injury.” Lee v. Farmer‘s Rural Elec. Cooperative Corp., 245 S.W.3d 209, 212 (Ky. Ct. App. 2007) (quoting Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 332 (Ky. 1987)). “‘The most important factor in determining whether a duty exists is foreseeability.‘” Pathways, 113 S.W.3d at 89 (quoting DAVID J. LEIBSON, KENTUCKY PRACTICE, TORT LAW § 10.2 (1995)); see also Fryman v. Harrison, 896 S.W.2d 908, 909 (Ky. 1995). Foreseeability, in turn, is determined based on “what the defendant knew at the time of the alleged negligence.” Pathways, 113 S.W.3d at 90; see also James v. Wilson, 95 S.W.3d 875, 891 (Ky. Ct. App. 2002) (“[F]oreseeability is to be determined by viewing the facts as they reasonably appeared to the party charged with negligence, not as they appear based on hindsight.“). “[P]roper application of negligence law requires courts to view the facts as they reasonably appeared to the party charged with negligence.” Mitchell v. Hadl, 816 S.W.2d 183, 186 (Ky. 1991).
The defendant‘s knowledge at the time includes “knowledge of pertinent matters . . . as a reasonable man would have.” Pathways, 113 S.W.3d at 90 (quoting RESTATEMENT (SECOND) OF TORTS § 289(a)). This knowledge includes the “capacities of things and forces in so far as they are matters of common knowledge at the time and in the community.” Id. (quoting RESTATEMENT (SECOND) OF TORTS § 290(a)).1
There is no evidence that either defendant had actual knowledge of the danger of bystander exposure, so the question is whether they should have known: that is, was such a risk foreseeable to them based on “common knowledge at the time and in the community.” Pathways, 113 S.W.3d at 90 (quoting RESTATEMENT (SECOND) OF TORTS § 289(a)). We agree with the district court that Martin has failed to show the risk was foreseeable at the relevant times.
In order to demonstrate the foreseeability of bystander exposure during these periods, Plaintiff submitted an export report by Dr. Barry Castleman as well as selections from Dr. Castleman‘s treatise Asbestos: Medical and Legal Aspects. Neither the report nor the treatise, however, provides evidence of a general awareness of the dangers of bystander exposure–even inside the specialized fields of asbestos manufacture or utility companies. The treatise has a section entitled “Earliest Recognition of the Potential for Bystander Asbestos Disease“; however, in its discussion of scientific research before the 1950‘s, it only documents direct exposure. In a 1911 study, some experts were concerned that those not working directly with asbestos could also develop asbestosis,
The report also refers to a deposition from a different case, taken in 1993, in which a Monsanto employee testified that Monsanto required employees in the 1950‘s to shower and change at work because Monsanto “didn‘t want [asbestos] in the home.” (J.A. at 383.) There is no indication of the basis for the Monsanto practice or that Monsanto‘s practice was shared with other companies or publicized in any way. Instead, the report states that “[s]tudies on the occurrence of asbestos disease that included family members of asbestos-exposed workers were not published until the 1960‘s.” The report does also conclude that “the hazard of asbestos exposure to families of the workers was scientifically knowable since the 1950‘s.” (J.A. at 385.)
These sources do not provide a basis for attributing knowledge of the risk of bystander exposure in the home to either GE or CG&E. GE stopped supplying CG&E with asbestos products in 1951, and the expert report explicitly finds that the risk to family members was only knowable beginning in the 1950‘s. Not only does the report not indicate whether the risk was knowable before 1952, it is insufficient that the danger was merely knowable–the knowledge has to have been available to the defendant. See Pathways, 113 S.W.3d at 90. There has been no showing of any general knowledge of bystander exposure in the industry. Indeed, other courts have found there was
Turning to CG&E, we find no evidence in the record to charge CG&E with knowledge of the danger of bystander exposure. Plaintiff‘s expert report concedes that the first studies of bystander exposure were not published until 1965. Mr. Martin‘s father‘s exposure to asbestos materials stopped in 1963. Without any published studies or any evidence of industry knowledge of bystander exposure, there is nothing that would justify charging CG&E or GE with such knowledge during the time that Mr. Martin‘s father was working with asbestos.
Plaintiff cites cases from several other states that find manufacturers and employers liable for asbestos-related illnesses from asbestos dust brought home from work. The best cases for Plaintiff are Olivo v. Owens-Illinois, Inc., 895 A.2d 1143, 1149 (N.J. 2006), and Zimko v. Am. Cyanamid, 905 So. 2d 465, 484 (La. Ct. App. 2005). Both find a duty based on secondary exposure to asbestos. Though each analysis is rooted in foreseeability, neither opinion persuasively explains how the defendant could have known the risk of secondary exposure involved.2 Olivo, 895 A.2d at 1149; Zimko, 905 So. 2d at 483-84. The other cases Plaintiff cites are either factually or legally distinguishable.3
Several of these decisions indicate that secondary exposure was not foreseeable in the 1950‘s and early 1960‘s. See, e.g., Alcoa, 235 S.W.3d at 462 (“[T]he danger of non-occupational exposure to asbestos dust on workers’ clothes was neither known nor reasonably foreseeable to Alcoa in the 1950s.“); In re Certified Question from Fourteenth Dist. Ct. of Appeals of Tex., 740 N.W.2d at 218 (finding the harm was not foreseeable because from “1954 to 1965 . . . we did not know what we know today about the hazards of asbestos“).
These state court decisions do not reach a uniform result, but we find the cases declining to find a duty to be more persuasive based on our reading of Kentucky law and the facts of this case. Accordingly, we find that defendants did not owe a duty to Mr. Martin.4
D. Neither CG&E nor GE are Liable under a Bystander Theory
III. CONCLUSION
Notes
Id. at 201-02. The risk of bystander exposure is nowhere near as self-evident as the risk that fog would spread. As the record demonstrates, it took scientists decades after they learned of the dangers of direct asbestos exposure to learn of the risks of bystander exposure.It was bound to anticipate the action of the wind and realize that the man-made fog could reach the roadway and cause visibility problems. In addition, the likelihood of such an accident was so obvious and the requirements for reducing the risk so minimal in comparison, that it was unreasonable to permit this condition to exist.