Lead Opinion
Affirmed in part, reversed in part, and remanded for a new trial by published opinion. Judge SHEDD wrote the majority opinion, in which Judge LUTTIG joined. Judge WILKINSON wrote a dissenting opinion.
OPINION
Owens-Corning Fiberglas Corporation (“OCF”) appeals the district court’s entry of partial summary judgment against it on two issues. For the reasons set forth below, we affirm in part, reverse in part, and remand for a new trial.
I
For over two decades beginning in 1952, James Jones and Samuel Culverhouse worked at the Babcock & Wilcox (“B & W”) plant in Wilmington, North Carolina. The B & W plant manufactured industrial boilers for use in large commercial facilities, and these boilers were insulated with asbestos during the 1950s, 1960s, and 1970s. Both Jones and Culverhouse, who were long-term cigarette smokers, were exposed to asbestos on a daily basis at the B & W plant, and they eventually developed asbestosis and lung cancer.
In 1990, Jones and his wife Vera, and Culverhouse and his wife Mattie, filed separate product liability lawsuits against various asbestos manufacturers, including OCF.
II
Initially, we will address OCF’s argument that the district court erred by entering partial summary judgment in favor of Jones and Culverhouse on the issue of exposure to OCF’s asbestos product. This Court has previously held that the plaintiff in a personal injury asbestos case “must prove more than a casual or minimum contact with the product” containing asbestos in order to hold the manufacturer of that product hable. Lohrmann v. Pittsburgh Corning Corp.,
A.
In moving for summary judgment on this issue, Jones and Culverhouse submitted to the district court the affidavits of Lowell Clark and Oliver Woodcock, both of whom testified inter alia that (1) they worked with Jones and Culverhouse at the B & W plant for over two decades beginning in 1952; (2) during that time, they were ah exposed to, and inhaled, asbestos dust on a daily basis; and (3) they worked with Jones and Culver-house with and around Kaylo pipe-covering and block, which are OCF asbestos products, on a regular basis from 1952 to the 1970s. Jones and Culverhouse also submitted their own deposition testimony in which they testified inter alia that they were exposed to asbestos at the B & W plant and that was their only asbestos exposure. Jones and Culverhouse had previously submitted records from the B & W plant which showed that Kaylo pipe-covering and block were used there during the relevant period of time. Believing that no factual response to this evidence was necessary because a factual dispute was self-evident, see infra Part II-B, OCF did not submit any factual material in opposition to the motion. Presented with this record, the district court determined that Jones and Culverhouse were entitled to summary judgment.
We conclude that the district court properly entered summary judgment against OCF on this issue. Rule 56(c) of the Federal Rules of Civil Procedure requires the district court to render summary judgment “if 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 a judgment as a matter of law.” The undisputed record presented to the district court — as summarized above — consists of direct evidence that establishes that Jones and Culverhouse were exposed to asbestos dust on a daily basis, and more specifically to Kaylo “on a regular basis,” for approximately 20 years. This evidence clearly shows “more than a casual or minimum contact” by Jones and Culverhouse with Kaylo. The district court therefore properly ruled in favor of Jones and Culverhouse on this issue.
B.
We reject OCF’s arguments to the contrary. OCF primarily argues, as it did be
In Roehling, this Court inter alia reversed the district court’s entry of summary judgment in favor of certain defendants whose asbestos-containing products were allegedly at one of the plaintiffs job-sites. With respect to that job-site, the plaintiff introduced evidence that he worked in the same limited area of the plant at the same time as his witnesses, and although the plaintiff could not remember what asbestos products were used in this area, the witnesses specifically identified two manufacturers whose products were there.
OCF argues that the evidence presented by Jones and Culverhouse is virtually identical to the evidence in Roehling since here, as in Roehling, although there is evidence which places Jones and Culverhouse in proximity with OCF’s asbestos products, Jones and Culverhouse did not personally identify any OCF product to which they were exposed. OCF reasons that because this Court found in Roehling that this evidence “raises a question of fact,” we must likewise find that a “question of fact” exists here so as to make summary judgment inappropriate. We believe that OCF misapprehends both the nature of summary judgment and the ruling in Roehling.
In Roehling, this Court was presented with an appeal of an entry of summary judgment in favor of the defendants, a ruling which was premised on the district court’s determination that even though the plaintiffs evidence was undisputed, that evidence was insufficient as a matter of law for the plaintiff to go forward at trial. As noted, this Court disagreed and concluded that the evidence submitted by the plaintiff was in fact sufficient to establish his case at trial. As there was no cross-motion for summary judgment by the plaintiff at issue in Roehling, this Court was not called upon to determine whether the evidence presented was sufficient to establish the plaintiff’s case. Such a determination would have exceeded the scope of the appeal in that case.
C.
We briefly address OCF’s other arguments on the issue of exposure. OCF contends that a factual dispute exists because the Clark and Woodcock affidavits are essentially identical and this “raises a question about their forthrightness.” OCF also asserts that the Clark and Woodcock affidavits are of “limited value” because they give no details about either the exposure the affiants seek to establish or how the affiants worked around both Jones and Culverhouse, who themselves worked in different departments. To the extent that these arguments may be seen as challenging the admissibility of these affidavits, we believe that OCF’s failure to move to strike them below constitutes a waiver of these arguments. See, e.g., Casas Office Machs., Inc. v. Mita Copystar Am., Inc.,
However, regardless of whether OCF has waived these arguments, we find them to be wholly without merit. Neither the fact that the affidavits are similar nor the fact that the affidavits are not more specific as to the matters specified by OCF negates their value for purposes of summary judgment in these cases. These affidavits sufficiently establish the critical facts which we have summarized above.
Ill
We now turn to OCF’s argument with respect to the contributory negligence defense, in which Jones and Culverhouse asserted below that, as a matter of North Carolina law, any evidence of a failure on their part to ignore a warning concerning the hazards of cigarette smoking could not be used to establish contributory negligence in these product liability actions which involve asbestos-containing products.
The motion for summary judgment as to this issue, contributory negligence as related to smoking, is allowed....
I’ve read considerably more than I had last week and it seems crystal clear to me that failure to follow a warning as to one product is not a defense as to the other one and that if the testimony in the case, as I believe it will be, is that it must be that it must be there, must be testimony that exposure to the asbestosis [sic] was a substantial contributing cause to the injury or death. That it doesn’t make any difference if tobacco — smoking tobacco or smoking, was also a substantial contributing factor. Doesn’t make a difference. That’s not contributory negligence.
Id. at 295.
A.
We conclude that the district court erred in entering summary judgment against OCF on the defense of contributory negligence as it relates to cigarette smoking.
OCF argues that under § 99B-4(3), a jury could conclude that Jones and Culverhouse were contributorily negligent if it found that (1) Jones and Culverhouse “failed to exercise reasonable care under the circumstances” in their use of the asbestos-containing products because (2) they continued to smoke cigarettes after the hazards of cigarette smoking and the relationship between cigarette smoking and asbestos exposure became widely known, and (3) their smoking, combined with their exposure to asbestos-containing products, was a proximate cause of their injuries which are the subject of this litigation. While we express no opinion concerning the sufficiency of the evidence in the record to support this defense — an issue which, as we have noted, is
B.
While we would otherwise readily agree with the dissent that OCF “is not to be exonerated by the happenstance of plaintiffs health habits,” under the circumstances of these cases, we cannot agree with the dissent’s characterization that Jones’ and Cul-verhouse’s smoking is mere happenstance. Under Jones’ and Culverhouse’s theory of the case, for which they offered medical testimony at trial, their habit of cigarette smoking operated in combination — i.e., “synergis-tically”
The dissent’s statement that OCF does not claim that Jones and Culverhouse were ever warned concerning the synergistic effect of cigarette smoking and asbestos exposure begs the critical question which was left open by the district court’s summary judgment ruling. In our view, OCF’s only possibility of prevailing on its contributory negligence defense requires proof that Jones and Culver-house were given such a warning. As we have noted previously, this is an issue which OCF has never been called upon to support factually because the summary judgment motion was not framed in such a manner so as to require OCF to adduce this evidence, and the district court’s summary judgment ruling mooted the issue for trial purposes.
Finally, we cannot agree with the dissent’s view, which we note is supported by no citation to any authority, that § 99B-4(3) is a “product misuse” defense that is limited in scope. As we have previously recognized, the North Carolina Supreme Court has expressly stated on two occasions that § 99B-4(3) is a codification of the doctrine of contributory negligence,
IV
For the foregoing reasons, we affirm in part, reverse in part, and remand for a new trial.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR A NEW TRIAL.
Notes
. James Jones died several months after filing the lawsuit, and Vera Jones, as Executrix of his Estate, was substituted as plaintiff. Because the operative facts for purposes of this appeal involve Messrs. Jones and Culverhouse only, we will hereinafter refer to them simply as “Jones" and “Culverhouse.”
. Although Lohrmann involves Maryland law, the parties appear to agree that it is equally applicable in these cases, which are based on North Carolina law, and we have found nothing to indicate that Lohrmann conflicts with North Carolina law in this regard. See, e.g., Wilder v. Amatex Corp.,
. We note that despite the apparent similarities between Roehling and the cases before us, “the question whether summary judgment is appropriate in any case is one to be decided upon the particular facts of that case,” First Nat'l Bk. of Ariz. v. Cities Serv. Co.,
. While this Court in Roehling used the term "question of fact” in its ruling, a clear reading of that opinion demonstrates that no "question of fact” was actually present, and to the extent that this Court stated that a "question of fact” existed, we believe that the use of that term was imprecise and does not correctly set forth the circumstances of that case. As is clear from the Roehl-ing opinion, the facts in that case were undisputed. Because of this, the district court in Roehl-ing actually ruled on a question of law — i.e., it ruled that the undisputed facts were insufficient as a matter of law to establish exposure.
. We find that the affidavits comply with the three requirements for affidavits under Rule 56(e) — i.e., they are based on personal knowledge, they set forth such facts as would be admissible in evidence, and they show that the affiants are competent to testify about the matters stated therein.
. As to the defense of contributory negligence, Jones and Culverhouse also moved for summary judgment on a separate and independent basis, arguing that there was no evidence in the record to establish that they ignored any warning on an asbestos-containing product and, therefore, they
. Although the parties devoted a considerable portion of their briefs discussing whether there is a factual basis in the record to support the district court's determination on this point, we find that this summary judgment ruling involves purely a question of law, and therefore, OCF was under no obligation at the summary judgment stage to come forward with factual material to support that aspect of its contributory negligence defense. See, e.g., Malhotra v. Cotter & Co.,
We also note that Jones and Culverhouse made a joint-tortfeasor argument in their motion, as-setting that OCF could not use the contributory negligence defense based on cigarette smoking, J.A. at 197A; and it appears as though the district court may have based its ruling at least in part on this argument. In essence, Jones and Culverhouse asserted that because their alleged injuries may have been proximately caused by both asbestos exposure and cigarette smoking, the asbestos company and the tobacco company each may be liable for damages under a negligence theory. To whatever extent this argument was relied upon below, we reject it because, as it is used on these facts, it completely ignores the concept of contributory negligence as it exists in North Carolina.
. This version of § 99B-4(3) is part of the North Carolina Products Liability Act that was in effect at the time the district court ruled in these cases. On July 29, 1995, the General Assembly of North Carolina amended the Products Liability Act, effective January 1, 1996, in several respects, none of which is pertinent to this appeal. See 1995 N.C. Sess. Laws Ch. 522.
.Contributory negligence is generally defined in North Carolina as " ‘the breach of the duly of the plaintiff to exercise due care for his own safety in respect of the occurrence about which he complains, and if his failure to exercise due care for his own safety is one of the proximate contributing causes of his injury, it will bar recovery.’" Champs Conv. Stores,
Apart from the plain language of § 99B-4(3) and the caselaw thereunder, a simple analogy demonstrates the propriety of our reading of the statute. Suppose that a person is prescribed medication, and affixed to the medicine bottle is a warning against the use of alcohol and the medication together. Despite this warning, the person ingests the medication together with alcohol, and thereafter suffers deleterious consequences. During a product liability lawsuit between the person and the pharmaceutical company which produced the medication, the company unquestionably would be able to assert that the person's conduct constituted contributory negligence. We believe that this analogy is parallel to the situation which we have outlined in the text. As with the alcohol and medication example, the evidence in these cases shows that the asbestos and the cigarette smoke worked together — synergistically, as explained by the experts — to increase the risk of harm (i.e., lung cancer) to Jones and Culverhouse. If the evidence also shows that Jones and Culverhouse were warned not to inhale asbestos and smoke cigarettes, and that they did so nevertheless, then their conduct clearly may be considered evidence of contributory negligence. A contrary holding would contravene the intent of the North Carolina legislature, as expressed in Champs Conv. Stores and Smith, and impose a standard of contributory negligence for product liability actions that differs from the general common law.
. “A synergistic effect of smoking is an adverse effect that smoking has when combined with the employee’s work activity. For some types of employees, smoking 'increases the probability of health impairments almost to a certainty.' When combined with smoking, exposure to asbestos ... can result in significant synergistic health effects.” L.L. Frye, "You've Come A Long Way, Smokers”: North Carolina Preserves The Employee’s Right To Smoke Off The lob In General Statutes Section 95-28.2, 71 N.C.L.Rev. 1963, 1995 (1993) (citation and footnote omitted).
. We note that although Jones and Culverhouse presented evidence that they had both asbestosis and lung cancer, and the contributory negligence defense appears to relate only to lung cancer, the jury did not specify the amount of damages for each disease but, instead, rendered a general verdict.
. While the dissent is correct that this Court did not reach this issue in Home, it is nevertheless significant that Home is the only North Carolina decision of which we are aware that has confronted the issue. The pertinent facts of Home, as set forth in this Court's Opinion, show that the district court jury found, by way of special interrogatory, that Home, who was a heavy smoker from 1952 to 1988, had been contributorily negligent because he had been made aware in the 1960s of both the Surgeon General’s warning concerning cigarette smoking and research distributed by his labor union that detailed an increased risk of lung cancer for persons who smoke and are exposed to asbestos. See 4 F.3d at 279.
. Prior to the passage of § 99B-4(3), North Carolina clearly recognized the defense of contributory negligence in product liability actions. See, e.g., Dalrymple v. Sinkoe,
. Contributory negligence is, as we discussed supra in note 8, the breach of the duty of the plaintiff to exercise due care for his own safety which, when established, operates as a complete bar to a claim for negligence. Product misuse, however, "is defined as use of a product in a manner that could not reasonably be foreseen by the defendant.” Higgins v. E.I. DuPont de Nemours & Co.,
.We emphasize that our decision is premised on a specific application of North Carolina law, not on a broad principle of asbestos litigation. While North Carolina's retention of the contributory negligence defense as a total bar to recovery may lead to seemingly harsh results in cases such
Dissenting Opinion
dissenting:
I respectfully dissent. In allowing the defense of contributory negligence, the majority fails to follow the plain language of North Carolina’s product liability law. The defense of contributory negligence is available only when “[t]he claimant failed to exercise reasonable care under the circumstances in his use of the product, and such failure was a proximate cause of the occurrence that caused injury or damage to the claimant.” N.C.Gen.Stat. § 99B-4(3) (emphasis added). There is no contention that plaintiffs misused the product here.
True, the plaintiffs smoked cigarettes. I do not understand, however, why use of one product (cigarettes) operates to bar recovery against the manufacturer of a totally different product (asbestos). The statute requires examination of the care taken in plaintiffs’ use of the product — here asbestos — and plaintiffs’ smoking is an independent fact not related to this question. The majority claims that the words “reasonable care under the circumstances” should somehow change this reading. Those words modify the phrase “use of the product,” however, a point that the majority’s interpretation of the statute overlooks. If exposure to asbestos caused these plaintiffs serious harm, the defendant is not to be exonerated by the happenstance of plaintiffs’ health habits.
Although the majority indicates that N.C.Gen.Stat. § 99B^4(3) was intended to codify the common law of contributory negligence, the North Carolina courts have paid strict attention to the actual wording of the statute. Champs Conv. Stores v. United Chemical,
The majority’s hypothetical of a person ingesting alcohol with prescription drugs differs from this case. Affixed to the medicine bottle in the majority’s hypothetical is an explicit warning against such product misuse — a warning which defendants do not even claim was present here. Indeed, they
Although North Carolina law does not afford a right to assert contributory negligence in these circumstances, I do not mean to imply that evidence of plaintiffs’ smoking habits would routinely be withheld from a jury. A history of cigarette smoking may be relevant to the question of the proximate cause of a plaintiffs injuries, see In re Manguno,
In sum, I would affirm the judgment of the district court.
. Some courts have determined that evidence of smoking in asbestos tort actions is relevant to comparative fault. Ingram v. Acands, Inc., 977 F.2d 1332, 1342 (9th Cir.1992); Fulgium v. Armstrong World Industries, Inc.,
. In this connection, the majority’s “synergism” theory addresses a matter of causation rather than a matter of contributory negligence. However intriguing as a matter of policy, the synergism theory would include as evidence of contributory negligence conduct that is not contemplated as such by the plain wording of the North Carolina statute.