Appeal from the Superior Court of the District of Columbia. (Hon. Rufus G. King, III, Trial Judge).
Before Wagner, Chief Judge,* and Ferren, and King, Associate Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge : Appellants, Margaret Gray Bly, personal representative of the estate of Leo Medford Bly, deceased, and Debra D. Seals, personal representative of the estate of Edward Seals, deceased, filed actions in the trial court against appellees and others contending that the decedents died from leukemia caused by their exposure to benzene contained in petroleum products either manufactured or supplied by appellees. Appellants alleged that Bly and Seals were exposed to the lethal products in the course of their work as automotive mechanics for the District of Columbia Department of Public Works (DPW) over the course of many years. The trial court granted summary judgment in favor of appellees Mansfield Oil Company of Gainesville, Inc. (Mansfield), Amoco Oil Company (Amoco), Texaco, Inc., (Texaco) and Steuart Petroleum Company (Steuart). The trial court also granted motions to dismiss in favor of Ashland Oil, Inc. (Ashland), Atlantic Richfield Company (Atlantic), BP Exploration & Oil, Inc. (BP), Citgo Petroleum Corporation (Citgo), Crown Central Petroleum Corporation (Crown), Fina Oil and Chemical Co. (Fina), Mobil Oil Corporation (Mobil), Sun Refining and Marketing Company (Sun), Tenneco Oil Company (Tenneco), Chevron, U.S.A. Inc. (Chevron), and Warex Petroleum Corporation (Warex) (collectively along with Amoco, Steuart and Texaco referred to herein as Amoco Oil, et al.). *fn1 In arguing for reversal, appellants raise an issue of first impression. They contend that this jurisdiction should adopt a version of the burden shifting rule known as "alternative liability" which on the facts presented would require appellees, as the negligent distributors of hazardous products, to meet the burden of proving that their products did not contribute to appellants' decedents' injuries and deaths. We conclude that the record on appeal does not support adoption of the novel variation on the theory of alternative liability which appellants advance or show that the trial court erred in its rulings. Therefore, we affirm.
Appellants' decedents, Leo Medford Bly and Edward Seals, were employed as automotive mechanics by the District of Columbia Department of Public Works from 1959 through 1979 and 1949 through 1978 respectively. During the course of their employment, both men were exposed to gasoline containing benzene. Appellants alleged in their complaints that appellees produced, refined, manufactured, marketed, and distributed gasoline containing benzene, that they knew that this substance caused leukemia and other diseases of the blood, and that they provided no warnings regarding the risks of exposure to the products. *fn2 According to the complaints, Seals was diagnosed with leukemia in October 1988 as a proximate result of which he died on June 15, 1991; Bly was diagnosed with the same illness on or about November 1, 1991 as a proximate cause of which he died on November 21, 1991. Appellants set forth in their complaints as theories for recovery against appellees, negligence, strict liability, creation of an ultra hazardous condition, and breach of implied warranties.
For purposes of discovery and pre-trial proceedings, appellants' cases were consolidated with three similar actions in the trial court which had been filed in 1990. *fn3 Subsequently, the court extended the time for discovery until September 30, 1992 on the issue of products identification (i.e., determining to which companies' gasoline appellants were exposed). Appellants concede that they were unable to ascertain during discovery "any significant evidence of who supplied the District Government with gasoline at any time prior to 1980."
Appellees Amoco, et al. filed a motion to dismiss on August 14, 1992 on the ground that, after nearly two years of discovery in the Bradley-Carter-Taylor litigation, there was no evidence linking Amoco, et al. to sales of gasoline to DPW during the period relevant to the Bly-Seals claims, i.e., 1959 through 1979 and 1949 through 1978 respectively. Citgo also filed a motion to dismiss on that date. Appellants' counsel sought to continue a hearing on the motions in order to speak with a potential witness, and he informed counsel for the appellee, Amoco, et al. by letter dated August 26, 1992 "that if in fact we have no evidence by the Conclusion of the product identification phase, we will enter into dismissal with you as to any defendants where there is no evidence." Counsel for appellants sent a similar letter to counsel for Mansfield. The Amoco, et al. appellees agreed to an extension of time for the hearing on the motion to dismiss. On September 18, 1992, the court granted the motion as unopposed. Appellants filed a motion for reconsideration, and the trial court vacated the order dismissing the case and subsequently considered the motion on the merits.
Amoco, et al. deposed appellants' product identification witness, Herman Ginwright, who had been identified in the Bradley-Carter-Taylor cases. MR. Ginwright testified that he held various jobs with the District between 1960 to 1968. During that period, he sometimes ordered gasoline for his department, and he remembered contacting several suppliers of gasoline, including Amoco, Texaco, and Esso. *fn4 Mr. Ginwright testified that he placed orders for gasoline around 1968, but he did not do so in the 70's. He could not recall if he placed orders in 1969. He thought that he might have also ordered from Shell, which is not a party, and Gulf. However, Mr. Ginwright did not know the source of each suppliers' gasoline or how much gasoline was delivered. Mr. Gainwright could not recall what an Amoco truck looked like, but he could recall something about the appearance of the Esso and Texaco trucks. He did not know how often such trucks made deliveries. The trial court found that Mr. Ginwright's poor memory about these events was not enough to raise a genuine issue identifying Amoco, Texaco or Chevron and Gulf as sources of the gasoline to which appellants claimed they were exposed.
Steuart filed a motion for summary judgment supported by the undisputed deposition testimony of Leonard P. Steuart, the Chairman of the Board and former Chief Executive Officer of Steuart from 1976-1990. Steuart testified that the company had never manufactured or produced gasoline since he came to the company. Although Steuart had purchased a gasoline terminal in the District of Columbia, it had never operated it. According to the witness, Steuart entered the wholesale gasoline distribution business after 1976. By an agreement of October 13, 1982, Steuart agreed to supply gasoline to Tri-Continental. Steuart also thought that it provided to Tri-Continental gasoline which was sold to the District during 1980 and the period 1982 to 1986. Steuart had no comprehensive records for the period 1968 to 1985 because of its record retention policy, and it had no records or information showing any deliveries or sales by Steuart of petroleum products to the District before 1982.
Warex, a wholesale distributor of petroleum products, responded to interrogatories that it never sold petroleum products to the District government. Other discovery indicated that in the late 1980's the District received some gasoline from Warex. Bly and Seals did not work for the District during the period that Warex and Steuart provided gasoline products to the District.
Appellee Mansfield filed a motion to Dismiss or in the Alternative for Summary Judgment accompanied by a supporting affidavit of its president, Michael Mansfield. Mr. Mansfield stated that the company had never supplied petroleum products either directly or indirectly to the D.C. government prior to 1980, the period relevant to appellants' claims. Appellants did not challenge Mansfield's statement of material facts as to which there was no dispute. In the supporting affidavit, Mansfield averred that the company never made any sales of petroleum products to Steuart or the District before 1980, and it never made shipments or sales to Virginia prior to that time. *fn5 The trial court granted Mansfield's motion.
Appellants were not able to discover any evidence connecting Marathon's products to products used by the District during the period relevant to their cases either. Marathon filed a motion to dismiss incorporating by reference the brief of the Amoco, et al. appellees. The trial court granted Marathon's motion.
In opposition to Marathon's motion to dismiss, appellants filed the affidavit of Arnold E. Safer, an economist with experience particularly in the gasoline market. According to Dr. Safer's affidavit, gasoline is manufactured by more than 100 refining companies in the United States, and it is possible that the products of these manufacturers could end up in one of the terminals in the District of Columbia area. He averred that by the time gasoline reaches the service station and consumer, it could include the products of numerous manufacturers. Dr. Safer stated that the gasoline to which Bly and Seals may have been exposed could have come from anywhere in the United States or even from other countries and that it would not be possible to know which refiner manufactured the gasoline. According to Dr. Safer, once gasoline is graded by the refiner, gasoline of the same grades may be mixed, and the identity of the manufacturer may be lost totally. He concluded that "when an end-user, such as the District of Columbia purchases gasoline over a number of years from several suppliers, it is impossible to identify the actual manufacturer of any given quantity."
In summary, the trial court dismissed the cases of the appellees which are referred to herein as the Amoco, et al. appellees because it "was persuaded that a market shares theory of liability has not been recognized in the District of Columbia in circumstances relevant to this case, that alternative liability . . . is not applicable to the facts outlined in the pleadings in this case." The court granted summary judgment for Amoco, Texaco, Mansfield, and Steuart on the basis of the more complete record before the court.
Appellants contend that the trial court erred in disposing of their claims summarily in spite of the lack of evidence as to which of the appellees' products their decedents were exposed at a given time. They argue that this jurisdiction should recognize the burden shifting rule known as "alternative liability," as set forth in the RESTATEMENT OF TORTS (2d) 433 (B)(3) (1965), which they contend would allow recovery on their claims where it is ...