Gerald S. Slaughter, Roma S. Bates v. Southern Talc Company

Rule of Law:

Under Texas law, to establish causation in asbestos cases, a plaintiff can prove actual exposure to a defendant’s product through circumstantial evidence demonstrating frequent and regular work in proximity to the product. Additionally, a wrongful death claim by a surviving spouse seeking to substitute as a plaintiff in an existing personal injury action can relate back to the original timely-filed complaint under both state and federal rules, even if asserted beyond the typical limitations period, provided the claim arises from the same conduct and defendants had adequate notice.

Facts:

• Seventeen plaintiffs, who were employees, former employees, or relatives of employees, worked at the General Tire plant in Waco, Texas.
• Plaintiffs alleged that products from Southern Talc Co. (STC) and Owens-Corning Fiberglass (OCF) caused them pulmonary disease.
• Kaylo, an OCF insulation product containing 15% asbestos, was delivered to or installed in the General Tire plant between 1960 and 1982.
• Joseph Lipscomb, a General Tire employee, testified that “OCF insulation” was delivered to the receiving department.
• Jim DeWitt, an insulator and pipefitter, testified that he installed Kaylo and other OCF insulation on pipes “all over the plant” from 1962 until 1985.
• Richard Jackson, a plant worker, testified that Kaylo and other OCF insulation were installed throughout the plant and that pipe insulation was regularly removed and replaced, causing visible dust to cover workers in the area.
• All plaintiffs testified that they worked near insulated pipes, and several recalled insulators replacing pipe insulation near them, with insulation dust regularly covering them.
• Over 160 tons of STC talc were delivered to the General Tire plant between 1964 and 1984, but OCF ceased manufacturing Kaylo after 1973.
• A 1987 study by Dr. William E. Longo concluded that a small sample of STC talc recovered from the General Tire plant contained 3% asbestos, but there was no evidence that talc delivered earlier contained asbestos.
• Mr. Moran and Mr. Green, original plaintiffs, died on November 20, 1988, and April 23, 1988, respectively, and their spouses, Mrs. Moran and Mrs. Green, sought to substitute themselves as individual plaintiffs and for the benefit of their children for their deceased husbands.

Procedural Posture:

• On March 19, 1987, 451 employees and former employees of General Tire and Rubber Company filed a lawsuit in district court against 13 producers and users of asbestos-containing products, alleging pulmonary disease.
• Defendants moved for partial summary judgment, arguing that 421 plaintiffs had not suffered pulmonary disease.
• The district court granted partial summary judgment in favor of defendants.
• The United States Court of Appeals for the Fifth Circuit upheld this partial summary judgment on appeal in Slaughter v. Southern Talc Co., 919 F.2d 304 (5th Cir.1990).
• After remaining discovery, the district court granted summary judgment in favor of defendants Southern Talc Co. (STC) and Owens-Corning Fiberglass (OCF), finding that plaintiffs failed to raise a fact question of producing cause and had not shown exposure to asbestos fibers from these defendants' products.
• The district court denied a motion for substitution by Mrs. Moran and Mrs. Green, individual plaintiffs, for their deceased spouses, effectively vacating its earlier order that had granted their motion to substitute themselves individually and for the benefit of their children.
• Seventeen plaintiff-appellants appealed the summary judgment granted to Southern Talc Co. and Owens-Corning Fiberglass, and the denial of substitution, to the United States Court of Appeals for the Fifth Circuit.