prod.liab.rep.(cch)p 10,589 Ouida W. Lee, Individually and as of the Estate of Jack H. Lee, Deceased v. The Celotex Corporation, National Gypsum Company

Citation: 764 F.2d 1489Docket: 84-8273

Court: Court of Appeals for the Eleventh Circuit; July 12, 1985; Federal Appellate Court

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Jack H. Lee, who died from mesothelioma linked to asbestos exposure, was the plaintiff in a lawsuit against multiple defendants, including National Gypsum Company. The case was initiated by Lee, who worked as a boilertender from 1941 to 1945, alleging exposure to asbestos from products manufactured by National Gypsum. After Lee's death, his widow, Ouida W. Lee, continued the suit. The district court granted summary judgment to National Gypsum, ruling that the plaintiff did not demonstrate Lee's direct exposure to any asbestos-containing products from the company. The appellate court affirmed this decision, emphasizing that plaintiffs in asbestos cases must provide evidence of direct exposure to the defendant's products to establish a claim. The case was part of a broader group of asbestos-related litigation being managed collectively to efficiently handle the high volume of similar cases. The principles governing the evidence required for proving exposure were further clarified in related cases consolidated for appeal.

Viewing the evidence in the light most favorable to the plaintiff, the court determined that the defendant successfully demonstrated the absence of a genuine issue of material fact. The plaintiff's claim of exposure to asbestos from the defendant's product was found to lack support, relying instead on speculation. The district court accepted testimony from Lee, who detailed his exposure to various asbestos-containing products but made vague references regarding National Gypsum's Gold Bond cement, which he used in small quantities as an insulation material and sealer. Notably, Lee could not link Gold Bond cement to any specific job involving asbestos products and was uncertain about its asbestos content, despite inhaling dust from it. The court's February 14, 1984, ruling stated that Lee only identified Gold Bond cement, which came in a box marked with a specific label, and did not mention Gold Bond Joint Compound, which contained asbestos and was packaged differently. Ultimately, the court granted summary judgment to National Gypsum, concluding there was no genuine issue of material fact regarding asbestos exposure.

An order was issued based on an incorrect finding regarding the asbestos content in Gold Bond Joint Cement, which National Gypsum acknowledged did contain asbestos. Following this, the plaintiff filed a motion for reconsideration, providing deposition excerpts and interrogatory answers from National Gypsum, which included a list of asbestos-containing joint treatment products used in building construction. The plaintiff argued these materials raised questions about whether Gold Bond Joint Compound or Cement contained asbestos and whether the decedent was exposed to its dust. National Gypsum did not contest the asbestos content but claimed the testimony indicated the use of a different product. The district court agreed with National Gypsum, noting that while the company acknowledged its joint treatment products contained asbestos from the 1930s to 1976, there was no evidence that Gold Bond Cement was used as insulation on ships, as claimed by the plaintiff. The court emphasized that the Gold Bond products were intended for finishing wallboard joints, not for sealing pipes or boilers, and the plaintiff failed to demonstrate that these products could be used in such a manner. As a result, the denial of the plaintiff's motion for reconsideration supported the summary judgment despite the earlier error regarding Gold Bond Joint Cement.

The court found that the plaintiff failed to demonstrate that Lee used a wallboard filler as a steam pipe sealant, deeming such a conclusion speculative and impermissible under legal precedent. Evidence indicated Lee had significant exposure to asbestos from other manufacturers, with minimal exposure to the defendant's products, leading the defendant to suggest a de minimis theory to affirm the district court's decision. The court noted that without a proper evidentiary record, the validity of the de minimis theory could not be determined, especially since the district court had not addressed it.

Circuit Judge R. Lanier Anderson, III, dissented, arguing that the majority overlooked reasonable inferences in favor of Lee. He highlighted that Lee testified to using 'Gold Bond Cement,' a product acknowledged by National Gypsum to contain asbestos. Anderson contested National Gypsum's claim that the product could not be used as Lee described, asserting that unless Lee's testimony was inherently incredible, the matter should be left to the jury to decide credibility. He emphasized that the record lacked evidence of a non-asbestos product matching Lee's description, which would weaken the inference that Lee used a non-asbestos alternative. Anderson maintained that Lee's exposure to the asbestos-containing product warranted further consideration.