Peerman v. Georgia-Pacific Corp.

Citations: 35 F.3d 284; 1994 U.S. App. LEXIS 24333; 1994 WL 482617Docket: No. 93-3501

Court: Court of Appeals for the Seventh Circuit; September 8, 1994; Federal Appellate Court

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Patricia Peerman initiated a wrongful death lawsuit claiming that her husband, Gerald Peerman, died from an illness linked to asbestos exposure from products made by Georgia-Pacific Corporation and Turner. Newall, pic (now T. N pic). The federal court has jurisdiction based on diversity of citizenship. The district court granted summary judgment in favor of Georgia-Pacific and T. N, a decision that was upheld on appeal.

Gerald Peerman worked at the Babcock Wilcox plant in Mt. Vernon, Indiana, from 1963 to 1982, primarily in the shipping and receiving department, where he loaded and unloaded products. He may have been exposed to airborne asbestos dust during his employment, which is known to cause serious health issues. Asbestos exposure can lead to asbestosis, pulmonary and bronchogenic carcinoma, and mesothelioma—diseases that typically manifest years after exposure. Mesothelioma, in particular, is a rare and fatal cancer that can take 30 to 35 years to develop.

Mr. Peerman died of malignant mesothelioma in December 1985, three years after leaving B. W. His widow asserts that his exposure to asbestos-containing products, specifically Georgia-Pacific's Ready Mix joint compound and T. N's AA Limpet Asbestos Fibre used in insulation, during his work at the plant caused his illness. Ready Mix was applied in the plant during the 1970s, while Limpet was sprayed on the plant's north wall after a fire between 1970 and 1975.

The district court granted summary judgment in favor of T. N. and Georgia-Pacific, concluding that Mrs. Peerman did not provide sufficient evidence to demonstrate that the defendants' products caused Mr. Peerman's mesothelioma. The court applied a causation test requiring proof of exposure to asbestos from the defendants' products. Although Mrs. Peerman presented evidence that certain products were used at the work site where Mr. Peerman was employed, she failed to show that he was actually exposed to asbestos from those products.

In reviewing the summary judgment de novo, the court emphasized that such a judgment is appropriate when no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. The court acknowledged that Indiana law governs causation in this case, but there is a disagreement between the parties regarding the applicable causation test. Georgia-Pacific and T. N. argue for a test requiring proof of exposure to asbestos-containing products, while Mrs. Peerman supports a 'job site' test that only necessitates showing that the product was present at a job site during Mr. Peerman’s employment.

The court noted that, despite the potential to certify the question of which causation test Indiana courts would adopt, it found no need for certification since Mrs. Peerman did not produce adequate evidence under either proposed test. It clarified that even under the 'job site' test, a plaintiff must still provide evidence supporting an inference of inhalation of asbestos dust from the specific defendant's product. Such an inference requires showing that the product could have produced significant asbestos dust during Mr. Peerman’s employment at the site.

The case involves two asbestos-containing products: Ready Mix joint compound and Limpet spray-on insulation. Mrs. Peerman presented evidence that her husband may have been in areas where these products were applied but did not provide sufficient proof that their application produced significant levels of asbestos dust that could have been inhaled by him. The court suggested that the method of application likely influenced the amount of asbestos dust generated, with Ready Mix being less likely to create hazardous dust compared to Limpet. Additionally, even if dangerous levels of dust were produced, it was uncertain whether it would have drifted throughout the plant to affect Mr. Peerman. 

Mrs. Peerman failed to provide evidence on the characteristics of asbestos fibers in a semiliquid medium, which hindered drawing an inference of inhalation. Although she submitted affidavits and articles supporting the idea that asbestos fibers can disperse in a workplace, these sources did not specifically address the properties of wet asbestos fibers. The affidavits were also deemed insufficient as the experts had not visited the plant to assess airflow and asbestos dissemination. Consequently, the court granted summary judgment in favor of the defendants, affirming the district court's judgment, as Mrs. Peerman had not established exposure from their products. Her original complaint had named 29 defendants, but she voluntarily dismissed claims against all except Georgia-Pacific and T. N., with no clear reason provided for these dismissals.