Perrin v. Acands
Opinion of the Court
Karen J. Perrin, executor of Arthur F. Perrin’s estate, brought this tort action against several asbestos manufacturers as
Perrin’s evidence showed Arthur’s only exposure to asbestos was during his Naval service as a boiler tender and fireman aboard the U.S.S. Floyd B. Parks, a destroyer. The appellees supplied asbestos-containing products stocked at the various shipyards where the destroyer was overhauled, and the appellees’ products were commonly used on Naval vessels in those shipyards. There was no direct evidence that the appellees’ products, or any particular products, were used on the destroyer, however. Perrin asserts this evidence is enough to raise a reasonable inference of Arthur’s exposure to the appellees’ products under Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 254 (Iowa 1993), and Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 858-59 (Iowa 1994). We disagree.
Unlike the situation in Beeman, neither Arthur (who was alive when this action was commenced) nor anyone else could state Arthur was exposed to the appellees’ products. See 496 N.W.2d at 254. And in Spaur, there was evidence that the appellees’ products were used in the plant where the plaintiff worked. See 510 N.W.2d at 860-61. Here, we lack evidence that the appellees’ products were used on Perrin’s vessel. Instead, the evidence shows possible use. Because Iowa has not adopted market share or alternative liability, “the mere possibility of [the use of the appellees’ products] and [Arthur’s exposure] does not satisfy [Perrin’s] burden of showing probable exposure to [the appellees’] asbestos, much less its causation of [Arthur’s] injuries.” Jackson v. Anchor Packing Co., 994 F.2d 1295, 1306 (8th Cir. 1993) (applying Arkansas law). The district court also properly refused to adopt the burden shifting formula employed under an alternative liability theory in Menne v. Celotex Corp., 861 F.2d 1453, 1464-67 (10th Cir. 1988). See 871 F.Supp. at 1096.
We affirm the district court. See 8th Cir. R. 47B(4).
Reference
- Full Case Name
- Karen J. PERRIN, of the estate of Arthur F. Perrin Karen J. Perrin v. ACANDS, formerly known as Armstrong Contracting & Supply, doing business as A C and S, Inc., a Delaware corporation Anchor Packing Company, a New Jersey corporation Armstrong World Industries, Inc., a Pennsylvania corporation individually and as successor in interest to Armstrong Cork Company, and as successor in interest to Armstrong Contracting & Supply, Inc. (now known as Acands, Inc. d/b/a A C and S, Inc. in Iowa) Fibreboard Corporation, a Delaware corporation, individually and as successor in interest to Fibreboard Paper Products Corp., Pabco Insulation Company, Plant Rubber & Asbestos Works and Plant Asbestos Co. Flexitallic Gasket Company, Inc., a Delaware corporation Foster Wheeler Corporation, a New York corporation Foster Wheeler Energy Corporation, a Delaware corporation, individually and as a subsidiary of Foster Wheeler Corporation GAF Corporation, a Delaware corporation, individually and as successor in interest to the Ruberoid Company A P Green Industries, formerly known as A P Green Refractories Company, Inc., a Delaware corporation Keene Corporation, a Delaware and a New York corporation individually and as successor in interest to Baldwin-Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Co., the Insulation Division of Mundet Cork Co., Mundet Co., and as owner of or successor in interest to Keene Building Products Corporation Owens-Corning Fiberglas Corporation, a Delaware corporation Owens-Illinois, Inc., a Delaware and an Ohio corporation United States Gypsum Company, a Delaware corporation, individually and as successor in interest to A P Green Industries, Inc., formerly known as A P Green Refractories Company, Owens-Illinois, Inc., a Delaware and an Ohio corporation Third party Atlas Turner, Inc., Flintkote Company Third party Owens-Corning Fiberglas Corporation Third party Flintkote Company Third party Owens-Corning Fiberglas Corporation Third party Atlas Turner, Inc. Third party Owens-Corning Fiberglas Corporation Third party Pittsburgh Corning, Third party
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- 2 cases
- Status
- Published