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In Re: Asbestos Products v. Mead Corporation

July 28, 2011

IN RE: ASBESTOS PRODUCTS
LIABILITY LITIGATION (NO. VI)
RICHARD ARCHER
v.
MEAD CORPORATION, ET AL.
ALFRED MCGUFFIE
v.
MEAD CORPORATION, ET AL.
REBEKKAH RIGGS
v.
MEAD CORPORATION, ET AL.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

MEMORANDUM

Consolidated Under

Transferred from the Northern District of Alabama

Before the Court is Defendant MW Custom Papers, LLC's Motion for Summary Judgment in the above-captioned cases, and Plaintiffs' Response.

I. BACKGROUND

Plaintiffs in the instant cases have asserted claims

based on alleged exposure to asbestos at the Cement Asbestos Products Company ("CAPCO") and National Cement plants in Ragland, Alabama. It is undisputed that The Mead Corporation ("Mead") as Corporate predecessor to named Defendant MeadWestvaco Corporation, was a shareholder of the above-mentioned plants from 1963 to 1974.

CAPCO manufactured pipes that were a mix of asbestos, cement, and silica. (Permit Appl. for Manufacturing or Processing, Pl.'s Ex. 10, doc. no. 118-12, at 8.)*fn1 Raw asbestos was delivered in bags to the facilities, where it was mixed with cement and silica into a "slurry," and then rolled in to pipe form. (Id.) About 6,000 tons of asbestos were used per year in the manufacturing process at CAPCO. (Id.) There is testimony on record that the worksite was consistently very dusty. (See Dep. of Ferrell Riggs, Oct. 17, 1997, doc. no. 118-46, pp. 51-52, testifying that he believes he was exposed to asbestos dust "everywhere" because he could see the dust everywhere in the plant.)

Plaintiffs originally filed the instant cases in Alabama state court in 2005, following the diagnoses of various asbestos-related diseases. The cases were removed individually based on federal question jurisdiction pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and transferred to the Eastern District of Pennsylvania as part of MDL 875 In Re: Asbestos on June 12, 2009. After discovery was completed, Mead moved for summary judgment in all three cases on identical legal grounds. This memorandum explains the legal principles relevant to all three cases and applies them to each case.

This Court has supplemental jurisdiction over Plaintiffs' non-CERCLA state law claims pursuant to 28 U.S.C. § 1367. Alabama law applies to the state-law claims at issue. See Felder v. Casey, 487 U.S. 131, 151 ("Under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), when a federal court exercises diversity or pendent jurisdiction over state-law claims, 'the outcome of the litigation should be substantially the same . . . as it would be if tried in federal court.'").

A. Charles Archer's Work History Plaintiff Charles Archer worked as a machinist at CAPCO from 1964 to 1976 and was then employed at National Cement from 1976 to 2002.

B. Farrell Riggs's Work History Plaintiff Farrell Riggs was employed as a laborer and operator at CAPCO from 1977 to 1982, when it closed. He was responsible for cleaning up asbestos, including sweeping the floors.

C. Alfred McGuffie's Work History Plaintiff Alfred McGuffie was employed at CAPCO from 1968 to 1982, when it closed. He was a laborer, clerk, and a labor foreman. He was responsible for opening bags of asbestos, unloading them, and cleanup.

D. Plaintiffs' Claims Against Mead Plaintiffs are pursuing claims against Mead under four separate theories of liability. First, that Mead voluntarily undertook a duty to provide a safe work environment at CAPCO and National Cement, and negligently failed to provide a safe work environment. Second, that Mead negligently inspected the premises. Third, that a division of Mead sold asbestos-containing gaskets to CAPCO. Fourth, that Plaintiffs were exposed to an asbestos at a dumpsite owned and operated by Mead, where asbestos waste from CAPCO and National Cement was deposited.

II. DISCUSSION

As a threshold matter, Mead asserts that Plaintiffs' claims are time-barred. Mead additionally asserts that the doctrine of shareholder immunity under Alabama law protects them from liability ...


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