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VIGIOLTO v. JOHNS-MANVILLE CORP.

September 11, 1986

ANTOINETTE J. VIGIOLTO, Executrix of the Estate of Christopher J. Vigiolto, Deceased, and ANTOINETTE J. VIGLIOLTO, in her own right, Plaintiff,
v.
JOHNS-MANVILLE CORPORATION, et al., Defendants



The opinion of the court was delivered by: DIAMOND

 DIAMOND, J.

 Plaintiff brought this action to recover damages arising out of the death of her husband, allegedly as a result of his exposure to asbestos containing products. Jurisdiction is based on diversity of citizenship and amount in controversy. 28 U.S.C. § 1332. Presently before the court, are the defendants' motions for summary judgment. The motions challenge the validity and/or applicability to this suit of the plaintiff's several theories of liability.

 I. Introduction.

 Christopher J. Vigiolto (the "decedent") served in the United States Navy from February, 1943 until June, 1945. During this time he was stationed on two ships, which were built and/or reconditioned by the Bureau of Ships, Department of the Navy. The plaintiff's complaint alleges that while decedent was in the naval service he was exposed to and inhaled asbestos dust and fibers *fn1" and that as a proximate result of this exposure he contracted malignant pleural mesothelioma, from which he died on January 6, 1981.

 Although all pretrial procedures and discovery have been completed, the plaintiff concedes that she is unable to identify any manufacturer of the asbestos products to which she contends decedent was exposed. At most, plaintiff can produce documents which indicate the manufacturers which sought to sell asbestos products to the Department of the Navy during the relevant time period. *fn2" Nevertheless, the plaintiff, asserting that she has named all, or substantially all, of the manufacturers who supplied asbestos to the United States Navy from 1943 through 1945, seeks to recover damages from the defendants under the so-called "enterprise", "industry-wide," or "market share" theories of liability. *fn3"

 Defendants argue that they are entitled to summary judgment because the plaintiff cannot identify the particular product or its manufacturer which allegedly caused decedent's death. Contending that the principle of tort law requiring proof of "causation" as a prerequisite to the fixing of liability has been firmly engrafted onto the products liability law of Pennsylvania, the defendants contest the validity and/or applicability of the enterprise or market share theories of liability in this case. Indeed, the defendants assert that not only are these theories inapplicable in the instant factual context, but that they are contrary to traditional and sound tenets of tort law generally.

 In a motion for summary judgment, the moving party must demonstrate that there exists no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c), 28 U.S.C. In considering a motion for summary judgment, the court must determine whether any issues of material fact exist, assume the resolution of the existence of any such issue in favor of the non-movant, and determine whether the movant is entitled to judgment as a matter of law. First Jersey Nat. Bank v. Dome Petroleum, LTD., 723 F.2d 335 (3d Cir. 1983). See, e.g., Hollinger v. Wagner Min. Equipment Co., 667 F.2d 402, 405 (3d Cir. 1981).

 In the absence of a definitive ruling on a question of substantive law from the highest court of the state whose law is applicable, a federal court sitting in a diversity action must predict how the highest state court ultimately would rule on that question of law. McKenna v. Ortho Pharmaceutical Corp., 622 F.2d 657 (3d Cir.), cert. denied, 449 U.S. 976, 66 L. Ed. 2d 237, 101 S. Ct. 387 (1980). The parties agree that the law of Pennsylvania is applicable in this suit. The Pennsylvania Supreme Court, however, never has ruled on the validity of any of the theories of liability advanced by the plaintiff, nor, therefore, has that court ruled on the applicability of any such theory of liability in the asbestos-litigation context. Accordingly, we must predict how that court will rule when those questions are before it.

 II. Applicable Law.

 Alternative Liability

 The first of the modern so-called "alternative theories of liability" was created in Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948). In Summers, two hunters simultaneously fired their guns at a bird, but plaintiff, a companion, was struck by a shot from one of the guns. Unable to prove which one of the hunters caused his resultant injuries, the plaintiff brought suit against both. The California Supreme Court held that despite the plaintiff's inability to determine which defendant actually caused the harm, each was jointly and severally liable to the plaintiff for his injuries. In so ruling, the court shifted the burden of proof to the defendants to establish which of the two caused the harm and held that in the absence of such proof both would be liable. The court reasoned that both defendants were wrongdoers, both had acted negligently, and that it was thus appropriate to place the onus on each defendant to "absolve himself if he [could]." Id., p. 86, 199 P.2d p.4.

 The Summers "alternative liability" theory now is incorporated in § 433B(3) of the Restatement (Second) of Torts, which provides:

 
Where the conduct of two or more actors is tortuous, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

 And in Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970), the Pennsylvania Supreme Court adopted § 433B(3) as the law of Pennsylvania. See also, Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (Pa.Super. 1974).

 In the case sub judice defendants contend that § 433B(3) is inapplicable since it is unclear whether all possible parties have been joined as defendants. We agree. The sine qua non of § 433B(3) liability is proof that harm has been caused to plaintiff by at least one of the multiple actors sued by the plaintiff. The phrase in § 433B(3) that "it is proved that harm has been caused to the plaintiff by only one of" the two or more tortuous actors clearly implies this. Obviously then, if plaintiff cannot prove who caused his injuries and does not name as defendants all who possibly could have, plaintiff has not proved that at least one of the named defendants caused the harm. It follows, therefore, that in order to invoke § 433B(3) the plaintiff must name as defendants all who could have caused the complained of injury. But see Erlich v. Abbott Laboratories, et al., 5 Phila. 249 (1981).

 Enterprise Liability

 Enterprise liability exists where it can be proved that plaintiff's injury was caused by at least one of a group of manufacturers of a particular product, where the precise offending manufacturer cannot be identified, and where the manufacturers collectively adhere to an unreasonable safety standard regarding the product.

 Enterprise liability was recognized first in Hall v. E.I. Du Pont De Nemours & Co., Inc., 345 F. Supp. 353 (E.D.N.Y. 1972). Hall, and its companion case Chance v. E.I. De Nemours & Co., Inc., id., arose out of eighteen separate incidents in which children were injured by blasting caps. In Hall, three groups of plaintiffs brought claims against two manufacturers of blasting caps. In each instance, one of the two manufacturers was identified as the producer of the injury-causing cap. The other, selected in effect at random from the industry, was joined on a theory of industry-wide responsibility for certain features of the cap's design. The court in Hall dismissed the second defendant because of the arbitrary manner in which that defendant was selected and because there was no need to join it since plaintiff was able to identify the producer of the injury-causing cap. Hall at 386.

 In Chance, the plaintiffs were unable to identify any of the particular manufacturers of the injury-causing caps. As a result, they "joined substantially the entire blasting cap industry and its trade association as defendants . . . [and sought] recovery on theories of joint liability." Hall at 386.

 The essence of the plaintiffs' theory was that the manufacturers had actual knowledge of the dangerousness of their products and that the manufacturers took inadequate precautions in light of the known risks of injury. Specifically, the plaintiffs asserted that the manufacturers' failure to print warnings on the individual blasting caps created an unreasonable risk of harm.

 The district court permitted joinder of substantially the entire industry even though in each instance only one member of that industry had actually caused the harm. The court reasoned that the plaintiffs should be permitted to proceed under a theory of joint liability because the defendants, acting independently, followed industry-wide standards and customs concerning the safety of the blasting caps. The court stated:

 
"Regardless of whether such evidence is sufficient to support an inference of tacit agreement, it is still relevant to the ...

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