The opinion of the court was delivered by: Thomas J. Rueter Chief United States Magistrate Judge
REPORT AND RECOMMENDATION AS TO THE MOTIONS FOR SUMMARY JUDGMENT OF DEFENDANT S.O.S. PRODUCTS COMPANY, INC.
Presently before the court are twelve motions for summary judgment of defendant, S.O.S. Products Company, Inc. ("defendant" or "SOS"), filed pursuant to Fed. R. Civ. P. 56(b) (individually, the "Motion" or "Def.'s Mot.). Plaintiff filed responses to defendant's motions. ("Pl.'s Resp.") and defendant filed replies thereto ("Def.'s Reply"). For the reasons that follow, the court recommends that the Motions filed against plaintiffs Glaser, Denzel, Willson, Poppke, Loeb, Ketterling and Gilchrist be DENIED and the court recommends that the Motions filed against plaintiffs Vogel, Unser, Hanson, Riedinger and Morrell be GRANTED.*fn1
According to defendant's Motions, forty-three plaintiffs, including the above-captioned plaintiffs, filed asbestos personal injury actions in May 1989, in North Dakota state court. (Mot. at 2.) All of the cases were removed by a defendant to the United States District Court for North Dakota, Southwest Division. Id. Five of the forty-three cases were resolved. Id. In March 1992, the remaining thirty-eight cases, including the above-captioned cases, were transferred to this court pursuant to 28 U.S.C. § 1407 and consolidated as part of MDL-875 by the Judicial Panel on Multidistrict Litigation.*fn2 The Honorable Eduardo C. Robreno referred the Motions to the undersigned for a Report and Recommendation as to the issue of causation. Oral argument was heard on July 14, 2010.
I. LEGAL STANDARD -- MOTION FOR SUMMARY JUDGMENT
Summary judgment is appropriate where "the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). A fact is "material" if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Furthermore, an issue is "genuine" if a reasonable jury possibly could hold in the non-movant's favor on that issue. Boyle v. County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). To demonstrate that no material facts are in dispute, the moving party must show that the non-moving party has failed to establish one or more essential elements of his or her case. Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). In analyzing the evidence, the court will view the facts in the light most favorable to the non-moving party and draw all inferences in that party's favor. Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 286 (3d Cir. 2009).
Once the moving party has demonstrated that there is no genuine issue of material fact, the non-moving party must present "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). "While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla." Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
Plaintiffs allege that each suffers from an asbestos-related disease as a result of his exposure to an asbestos-containing product manufactured, supplied or distributed by the various defendants in these cases. Plaintiffs base their claims for damages on allegations of the defendants' negligence, strict liability, and breach of warranty.
Defendant SOS Products filed the motions for summary judgment that are presently before the court. SOS Products "mixed and compounded," inter alia, an asbestos-containing furnace cement. See Pl.'s Resp. at Ex. 1, Defendant's Answers to plaintiff's Interrogatories and Request for Production of Documents at 4-6. The furnace cement was premixed and was packaged in metal cans. Id. It was sold between 1946 and the early 1970s. Id. It was intended to be used for furnaces or similar applications. Id.
A. Causation under North Dakota law
Under North Dakota law, to succeed in a negligence action, a plaintiff must prove that the defendant owed him a duty, the defendant failed to discharge that duty, and the plaintiff suffered an injury that was proximately caused by the defendant's negligence. Klimple v. Bahl, 727 N.W.2d 256, 258 (N.D. 2007). "A proximate cause is a cause which, in natural and continuous sequence, produces the injury and without which the injury would not have occurred." Rued Ins., Inc. v. Blackburn, Nickels & Smith, Inc., 543 N.W.2d 770, 773 (N.D.1996). Furthermore, a proximate cause is one which played a substantial part in bringing about an injury; there may be more than one proximate cause. See Beilke by Beilke v. Coryell, 524 N.W.2d 607, 609 (N.D. 1994). A plaintiff may establish the elements of his claim, including causation, by circumstantial evidence. Farmers Ins. Exchange v. Schirado, 717 N.W.2d 576 (N.D. 2006). See also Heng v. Rotech Med. Corp., 688 N.W.2d 389, 399 (N.D. 2004) ("[C]ircumstantial evidence may provide an inference of causation.").
In its motions for summary judgment, defendant contends that each plaintiff has failed to produce evidence that such plaintiff's injury was caused by defendant's product. Specifically, defendant contends that there is a "complete lack of sufficient and credible evidence of exposure to asbestos-containing products supplied, distributed or manufactured" by defendant. (Def.'s Mot. at 1-2.) Thus, this court must determine whether each plaintiff has presented sufficient evidence to raise a genuine issue of material fact on the causation issue.
As the parties acknowledge, however, the North Dakota Supreme Court has not addressed the question of how much circumstantial evidence a plaintiff in an asbestos-related claim must produce in order to survive a summary judgment motion based on the issue of causation. Defendant urges the court to apply the so-called "frequency, regularity and proximity" test of causation as set forth in Lohrman v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). (Def.'s Mot. at 5-7.) In accordance with this test, "to support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff worked." Lohrman, 782 F.2d at 1163.
In response, plaintiffs argue strenuously against the application of the frequency, regularity, and proximity test, noting that no North Dakota appellate court has addressed a "non-exposure" motion in an asbestos case, and further aver that North Dakota trial courts have applied a liberalized standard as to the sufficiency of exposure evidence. Plaintiffs also argue that the application of the frequency, regularity and proximity test is inconsistent with the law of North Dakota with respect to causation. In addition, plaintiffs also note that this test has been criticized by other courts. See e.g., Weakley v. Burnham Corp., 871 A.2d 1167, 1177 (D.C. 2005) (reasoning that the frequency, regularity and proximity test "is too exacting, especially where, as here, the plaintiff has produced expert evidence . . . to the effect that every encounter with an asbestos product contributes significantly to the contracting of asbestosis").
While defendant acknowledges that no North Dakota state appellate court has adopted the frequency, regularity and proximity test, it points to one trial court in North Dakota that applied this stringent test in 2005 in granting the defendants' non-exposure motions. See Def.'s Mot. at Ex. 5, Memorandum Decision and Order Granting Motions for Summary Judgment on Non-exposure Claim, Grand Forks Asbestos -- Set 19 (Civ. No. 18-07-C-1928). In response, plaintiffs argue that in April 1991 prior to the creation of MDL 875, United States Magistrate Judge Karen K. Klein of the District of North Dakota, ruling on non-exposure motions against other plaintiffs in the present plaintiffs' case group, refused to apply the test. See Pl.'s Resp. at Ex. 6, Recommendation and Order dated Apr. 5, 1991 (Klein, J.), at pp. 2-4.*fn3
Because the Supreme Court of North Dakota has not addressed the precise question of the application of the frequency, regularity and proximity test, this court typically would be tasked with predicting how the North Dakota Supreme court would decide that question. To do so, generally, this court would "'look to decisions of state intermediate appellate courts, of federal courts interpreting that state's law, and of other state supreme courts that have addressed the issue,' as well as to 'analogous decisions, considered dicta, scholarly works, and any other reliable data.'" Norfolk Southern Ry. Co. v. Basell USA Inc., 512 F.3d 86, 92 (3d Cir. 2008) (quoting Koppers Co., Inc. v. Aetna Cas. & Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996)). "Although lower state court decisions are not controlling on an issue on which the highest court of the state has not spoken, federal courts must attribute significant weight to these decisions in the absence of any indication that the highest state court would rule otherwise." Colliers Lanard & Axilbund v. Lloyds of London, 458 F.3d 231, 236 (3d Cir. 2006) (quoting Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273-74 (3d Cir. 1985)). However, this court declines at this time to predict whether the North Dakota Supreme Court would apply the frequency, regularity and proximity test because it is not necessary to dispose of the present motions for summary judgment. See Bossert v. Keene Corp., 1994 WL 108844, at *1 (8th Cir. Mar. 31, 1994) (nonprecedential opinion) (declining to predict whether Supreme Court of North Dakota would adopt the frequency, regularity and proximity test because plaintiff "failed to produce substantial evidence of exposure" to defendant's products).
B. Sufficient Evidence of Exposure -- Motions Denied
For the reasons that follow, the court finds that plaintiffs Glaser, Denzel, Willson, Poppke, Loeb, Ketterling and Gilchrist have presented sufficient evidence of exposure to defendant's asbestos-containing product. These plaintiffs have established causation under North Dakota law because the evidence is sufficient for a jury to find that defendant's product "had a substantial part in bringing about the [plaintiff's] injury." See Beilke by Beilke v. Coryell, 524 N.W.2d 607, 609 (N.D. 1994). Such evidence supports a reasonable inference of substantial causation, even considering the frequency, regularity and proximity of the exposure to defendant's product. The evidence presented by these plaintiffs may or may not persuade a jury to return a favorable verdict, but it is at least sufficient to raise material issues of fact as to whether their exposure to defendant's product was a substantial factor in causing each plaintiff's injuries.
Mr. Glaser worked as a pipefitter from 1963 until 1986 for various employers at various residential, commercial and industrial job sites. See Glaser Work History (Def.'s Mot., at Ex. 2). Mr. Glaser alleges exposure to several asbestos-containing products, including, SOS furnace cement. Id. Mr. Glaser testified at deposition that he was familiar with SOS furnace cement. See Pl.'s Resp. at Ex. 4, Glaser Deposition at 198-99. He did not know when he used the product, but believed it was during his employment with Sanitary Plumbing & Heating between 1969 and 1985. Id. He described the SOS furnace cement as a wet product that came in a can, which he applied with a putty knife or his fingers. Id. Mr. Glaser testified that he used "possibly twenty-five" of the cans during his career. Id. Although he testified that use of the SOS product was "probably not dusty," Mr. Glaser also testified that he used a wire brush to scrape off dried furnace cement from his putty knife. Id. at 200. Mr. Glaser has presented credible evidence of his exposure to defendant's asbestos-containing product. The court recommends that the summary judgment motion filed against plaintiff Glaser be denied.
Mr. Denzel worked as a boilermaker from 1959 until 1988, at various industrial and commercial job sites in Minnesota and North Dakota. (Pl.'s Resp. at Ex. 4.) Mr. Denzel testified at deposition that he used SOS products while working for his father to repair old furnaces. Id. at 188. He worked with his father in the early 1950s and the 1970s for eight years. Id. at 17, 42. The SOS product was used to fill cracks in furnaces. Id. at 188. The product was a wet, premixed cement which came in a can which was applied with a putty knife. Id. at 188-89. If the product dried on the putty knife, Mr. Denzel had to grind it off or scrape it off with a wire brush. Id. at 307-08. Dust was created when the dried furnace cement was ground off or scraped off a surface. Id. Mr. Denzel could not estimate how many times he used the product. Id. at 191-92. Mr. Denzel has presented credible evidence of his exposure to defendant's asbestos-containing product. The court recommends that the summary judgment motion filed against plaintiff Denzel be denied.
Mr. Willson worked for various employers as a plumber/pipefitter on residential and industrial job sites from 1953 until 1981. See Pl.'s Resp. at Ex. 4, work history. He was employed by H.A. Thompson & Sons, a Bismarck, North Dakota mechanical contractor, during the period 1967 to 1970 and during the period 1973 to 1974. Id. Mr. Willson testified that the last time he recalled working with SOS boiler cement was in the late 1960s. (Pl.'s Resp. at Ex. 4, Willson Dep. at 235.) Mr. Willson was unable to specifically recall another job on which an SOS product was used. See Pl.'s Resp. at Ex. 4, Willson Dep. at 236-37. However, he also testified that he specifically recalled using an SOS product while employed by Odes Plumbing & Heating in Bismarck, North Dakota. (Pl.'s Resp. at Ex. 4, Willson Dep. at 237; Pl.'s Resp. at Ex. 4, work history.) Mr. Willson testified, of the time he spent working at Odes Plumbing, one to five percent of his time was spent working with SOS boiler cement. (Def.'s Mot. at Ex. 3, Willson Dep. at 165-66.) Mr. Willson has presented credible evidence of his exposure to defendant's asbestos-containing product. The court recommends that the summary judgment motion filed against plaintiff Willson be denied.
Mr. Poppke worked as a pipefitter from at least 1967 until 1987. (Pl.'s Resp., at Ex. 4, work history.) He was employed by H.A. Thompson & Sons, a Bismarck, ND, mechanical contractor, at various residential, commercial and industrial job sites in North Dakota. Id. Mr. Poppke recalled working with SOS products and also recalled that H.A. Thompson & Sons kept SOS "refractory mud" "in the shop" for its employees to use, but he was unable to recall a specific job site on which he used an SOS product. (Def.'s Mot., Ex. 3 at 215; Pl.'s Resp., at Ex. 4, Poppke Dep. at 290.) Mr. Poppke has presented credible evidence of his exposure to defendant's asbestos-containing product. The court recommends that the summary judgment motion filed against plaintiff Poppke be denied.
From 1958 through 1984, Mr. Loeb worked as a pipefitter on various residential, commercial and industrial job sites in North Dakota for a variety of employers, including H.A. Thompson & Sons, a Bismarck, North Dakota based mechanical contractor. (Pl.'s Resp. at Ex. 4, work history.) Mr. Loeb's deposition was taken on July 26, 1990 and also on February 17, 1992. (Pl.'s Resp. at Ex. 4, Loeb Deps.) Mr. Loeb testified that he used furnace cement to seal joints on furnaces; he spent approximately thirty to forty percent of his time applying furnace cement. (Pl.'s Resp. at Ex. 4, Loeb 1990 Dep. at 201.) In addition, approximately ten to fifteen percent of the time it was necessary to sand down or grind down the cement after it dried. (Pl.'s Resp. at Ex. 4, Loeb 1990 Dep. at 199-202.) Mr. Loeb specifically recalled using SOS brand furnace cement on a job while working for H.A. Thompson & Sons some time between 1958 and 1968. See Pl.'s Resp. at Ex. 4, Loeb 1990 Dep. at 175-76, 204-06. The project lasted for two weeks and consisted of a conversion of a boiler from coal to oil at a school in Cannon Ball, North Dakota. Id. Mr. Loeb also recalled using SOS furnace cement at a project at a church. (Pl.'s Resp. at Ex. 4, Loeb 1990 Dep. at 208-09.) The project lasted four days; he spent approximately one day applying furnace cement. Id. Mr. Loeb has presented credible evidence of his exposure to defendant's asbestos-containing product. The court recommends that the summary judgment motion filed against plaintiff Loeb be denied.
Mr. Ketterling worked as a pipefitter from 1962 through the early 1990s and was employed by various mechanical contractors in South Dakota and North Dakota on residential, commercial, and industrial job sites. (Pl.'s Resp. at Ex. 4, work history.) Mr. Ketterling testified that he used SOS furnace cement for sealing boilers. (Pl.'s Resp. at Ex. 4, Ketterling Dep. at pp. 340, 558.) He described the furnace cement as a putty with an abrasive quality. Id. at 340-41. Although he testified that application of the product was not a dusty process and that he mostly tried to clean up the product before it dried, he also testified that the furnace cement dried into a hard substance. Id. at 340-41, 560-61, 564. Mr. Ketterling explained that he tried to "avoid getting it on ourselves. Sometimes got it on your fingers or hands, you know, or dropped a little bit on the floor or something, had to scrape it up, clean it, wipe it up. Sometimes you'd get a gob of it or two on your clothes." Id. at 563. Mr. Ketterling estimated that he used SOS furnace cement approximately twenty times in his career, most likely during the 1960s and ...