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08/03/95 GROVER C. CLAYTON v. OWENS-CORNING

August 3, 1995

GROVER C. CLAYTON, ET AL., APPELLANTS
v.
OWENS-CORNING FIBERGLAS CORPORATION, ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia. (Hon. Ronald P. Wertheim, Trial Judge)

Before Terry, Schwelb,* and King,** Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge : Appellants Grover Claytor, Frank Keelan, Chester Turner, and their wives filed suit against several manufacturers and suppliers of asbestos products, seeking compensation for injuries allegedly resulting from exposure to asbestos. *fn1 The trial court entered summary judgment against appellants on most of their claims. Appellants bring this appeal against only four of the original defendants: Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Pittsburgh Corning Corporation, and GAF Corporation. Each pair of appellants seeks slightly different relief. Specifically, (1) the Claytors seek reversal of the judgment in favor of Owens-Corning and Owens-Illinois, (2) the Keelans seek reversal of the judgment in favor of Owens-Corning, Pittsburgh Corning, and GAF, and (3) the Turners seek reversal of the judgment in favor of Owens-Corning and GAF.

The motions for summary judgment asserted that there was insufficient evidence, and in some cases no evidence, to prove that appellees' products caused injury to appellants. The trial court, applying in large part the evidentiary standard for asbestos cases developed in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), held that appellants could not establish that the products manufactured or supplied by these appellees were a "substantial factor" in causing appellants' asbestos-related diseases. Appellants contend on appeal that the Lohrmann standard may not be "proper in this jurisdiction"; that even if it is "proper," the trial court misapplied it; and that there are substantial factual issues affecting all of their claims which may be decided only by a jury.

We need not decide whether the test developed by the Lohrmann court, or any other special test, should be adopted for use in asbestos-related cases. Instead, in reviewing the trial court's grant of summary judgment, we apply the "substantial factor" test established long ago in this jurisdiction, and in doing so we conclude that, in almost every respect, the judgment must be affirmed. We hold that, even when the evidence is viewed in the light most favorable to appellants, it is insufficient to support a jury verdict in favor of Claytor and Keelan, and hence we affirm the entry of summary judgment against them. With respect to Turner, we affirm the summary judgment against him in favor of GAF Corporation but reverse, for reasons which we shall explain, the judgment against him in favor of Owens-Corning.

I

Appellees' motions for summary judgment asserted that there was no evidence that products manufactured or supplied by them caused appellants' asbestos-related illnesses. In particular, appellees maintained that appellants could not identify appellees' products as the ones that caused their injuries, or even prove that their products were a "substantial factor" in causing the alleged injuries. Appellants responded by citing portions of their own deposition testimony, as well as the deposition testimony of others who had worked with products manufactured or supplied by appellees, in an attempt to place appellees' products at or near locations where they had worked. Appellants also submitted affidavits and portions of depositions from two experts.

A. Appellants' Deposition Testimony

1. Claytor

Grover Claytor's career as a welder and pipefitter spanned almost fifty years, from 1938 to 1986. He "guessed" that he began working with asbestos in 1938, when he worked on automobiles at Acme Welding Company and used wet asbestos on hot brake and gas lines. Soon thereafter, "about '42 . . . And the early part of '43," he worked at Walter Reed Army Hospital welding pipe in the steam tunnels. Claytor was not continuously on the jobsite at Walter Reed; rather, there would be short stints, a week at most, when he went to the hospital to repair pipes.

Some time later, when Claytor was in the Navy, he used "block" to insulate boilers, but he could not recall if it was "Kaylo block." *fn2 After his discharge from the Navy, Claytor returned to Acme Welding, where he remained until 1964. During his years with Acme, he said, he worked on several jobsites, including Fort Belvoir, Virginia, Fort Holabird, Maryland, and "a whole lot of different apartment houses in Washington. . . . I'll be darned if I know all the places where I worked." Referring to Fort Belvoir, Claytor said, "I know I worked there in '51, and I did some work there in '55. And then off and on at different times up until 1973, just different times." As to the nature of the work he performed at Fort Belvoir, Claytor testified that, among other things, he helped to tear out old pipes and boilers. He said that he, along with others, sometimes tore out old asbestos from around the pipes, but he did not know the brand name or the manufacturer of the asbestos covering (although he did recall the company -- Rick-Weld Corporation -- that made the pipe itself; "it had Rick-Weld marked on it").

Claytor otherwise testified only in general terms about his presence near asbestos products. He said that at times he would be inside a building when asbestos was being used, although, because he was a welder, he mainly worked outside the buildings on pipes that were connected to manholes. Claytor stated that at various times during the "'50's, '60's, and '70's" he worked at different facilities of the Chesapeake and Potomac Telephone Company, but he "never did a whole lot of work for them," usually no more than a week at a time. Sometime "in the '60's," he said, at "two or three different times," he worked at Saint Elizabeths Hospital. He believed the old pipes there had asbestos on them, and perhaps the new pipes as well, but he was not there when the new ones were installed. Other than the boiler room, he could not recall where he worked at Saint Elizabeths. Finally, Claytor mentioned that he had done some work at Catholic University, but he did not say when or for how long. Concerning his possible exposure to asbestos at Catholic University, Claytor said only that he "worked in all the buildings, and all of those buildings had asbestos in them." He did not identify the manufacturers or suppliers of any asbestos products that might have been at the university.

2. Keelan

Frank Keelan, an electrician from 1947 to 1983, testified about numerous places where he worked and where he believed asbestos products were present, but only in general terms. For example, he said that he worked for Bowen Electric Company on a job at Bladensburg High School in Prince George's County, Maryland, but he could not recall the brand names or manufacturers of any asbestos products used there. He also worked at the National Institutes of Health (NIH) during the 1950's and 1960's, but he could not remember exactly when because he "moved around so much." He did recall installing some fluorescent light fixtures in 1954 in Building 10 at NIH. On that occasion he worked near the ceiling where the installers of asbestos were also working. He also remembered working at the Wonder Bread bakery sometime during 1952 and 1953.

Keelan testified about the work he performed in the 1960's and 1970's at the Goddard Space Flight Center, a facility of the National Aeronautics and Space Administration (NASA) in Greenbelt, Maryland. He said that he worked in the "main place where they had . . . the rockets and all, and also we worked in the -- the different offices that were -- offices of people that worked there and all. And then the tracking -- we worked in the tracking station, which is a big area." Keelan then had a "short stint, maybe six months in '69 and '70, out at Calvert Cliffs," an electric power plant in Maryland near Chesapeake Bay. He testified that at Calvert Cliffs he would work in the same room with plumbers and pipe coverers, although he could not recall any particular project or job at which pipe coverers were present, and sometimes the only other persons on the jobsite were electricians. Sometime in 1968 and 1969, Keelan said, he did some work at the headquarters of the International Monetary Fund (IMF) in downtown Washington. During the time he worked there, which was "quite a while," members of many other trades were also working at that jobsite. As for manufacturers or brand names, Keelan remembered that the pipe coverers at IMF used "Georgia-Pacific, Johns-Manville -- what's the other, Corning? -- there is another name that goes with Corning; that's the only ones I ever remember seeing on any job, and I'm not specifying which jobs they were on. That's the only names I can ever remember that -- that -- in my whole career that I remembered." He added that he did not actually see the names on the products, but was "just saying the name I heard."

Later in 1968, after the IMF job, Keelan worked for a time at a printing plant for McCall's magazine, where some new printing presses were being installed. He remembered seeing pipefitters there while he was on that job. Next, Keelan testified, he worked on a new addition to Suburban Hospital in Bethesda, Maryland. At that jobsite there were carpenters, plasterers, pipe coverers, steamfitters, and sheet metal workers. Keelan said that there were probably "sprayers [of asbestos]" there as well, but he was "not going to say that saw them." *fn3

3. Turner

Chester Turner, also an electrician, testified that he began working for his father's company as a young man and remained there until 1949. At some time during this employment, he said, he worked at three bus terminals where he believed there might have been asbestos present, as well as a United Mine Workers hospital.

Focusing on the years 1954 to 1963, when he was employed by Harrison Electrical Contractors, Turner said he worked on "a lot of . . . small jobs," such as remodeling Sears Roebuck stores and Acme supermarkets, where he believed asbestos products were used in pipe covers. In general, he could not recall which of the many Acme stores he worked in, but he did remember one Acme store in Fort Hunt, Virginia, and two in the District of Columbia, one in Northeast Washington and another on Georgia Avenue, Northwest. Turner said that insulators were insulating pipes, refrigeration lines, and heating lines while he was there doing electrical work, but he did not know the brand names or manufacturers of any of the asbestos products being used at any of the Acme sites. He also could not remember the names of any of the people with whom he worked on the Acme jobs. He did identify two Sears Roebuck stores in the District of Columbia where he worked during this period, one on Wisconsin Avenue and the other on Bladensburg Road. He spent about two months on each of these jobsites. Although he did not work with any asbestos products, Turner said, "it was just in the building where they insulating pipes and all." The asbestos was "pre-form," and he could not recall the manufacturer of it.

During 1966 and 1967, Turner testified, he worked at the new Sears Roebuck store being built at Montgomery Mall, a large shopping mall in Bethesda, Maryland. He said that the insulators were using asbestos around the air conditioning units on the roof, and he remembered seeing bags of insulation labeled "Johns-Manville," but he could not remember any other manufacturer or brand name. Also, Turner noted that there was no spraying going on at the Sears store; instead, the insulators were using only pre-formed insulation fittings. Turner testified that he did not spend much time on the roof (where the air conditioners were being installed), but went there only when he needed to "connect up switch gears and do the regular electrical work." He spent the remainder of his time in other parts of the building, "running electrical conduits and installing fixtures and switch gears and switches."

From 1963 to 1974 Turner was employed by Singleton Electric Company. During that period he spent approximately two years (he could not recall the exact dates) working for Singleton at Dulles International Airport in Fairfax County, Virginia. He was a "working foreman" there, which meant that he supervised the entire project and also performed various electrical tasks in the offices, in the pipe tunnels under the main building, in terminals out on the field, and in all the restaurants. He said that he believed asbestos products were being used at Dulles, but he did not work with asbestos himself. He did, however, see other workers taking pre-formed insulation out of "Owens-Corning" boxes. Turner also testified that "sometime between '63 and '74" he worked at one of the two Department of Agriculture buildings in downtown Washington. Asbestos products were being used there, but he only remembered insulation in "Johns-Manville" boxes.

Turner also worked for a period of time at Catholic University Law School, but he could not recall the manufacturer or brand name of any asbestos product that was used there. In addition, he said that he worked on another building at Catholic University, but he did not know whether there were any asbestos products on that jobsite. In 1971 he worked at a Safeway Stores milk plant in Landover, Maryland, where he believed there were asbestos products in the pipe covering in the hung ceiling. He was present when the old asbestos was being torn out and new insulation was being put in, but he could not recall any manufacturer or brand name of any asbestos product.

Sometime around 1973 Turner worked for about a year on two consecutive jobs at NASA's Goddard Space Flight Center. On the first job, he could not remember which building he worked in, but he knew that asbestos was present because steamfitters were tearing out old pipes and installing new ones, and he worked "shoulder to shoulder" with the steamfitters. The pipe coverers working on the new pipes were using a pre-formed Owens-Corning product. He then did some work in the powerhouse at Goddard for about four months, connecting an air ...


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