Carol Stallings v. Georgia-Pacific Corp.

NOT RECOMMENDED FOR PUBLICATION
File Name: 17a0020n.06
No. 15-6387
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CAROL LEE STALLINGS, Individually and as )
Executrix of the Estate of William Stallings, )
)
FILED
Plaintiff-Appellant, ) Jan 10, 2017
) DEBORAH S. HUNT, Clerk
v. )
)
GEORGIA-PACIFIC CORPORATION, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
Defendant-Appellee, ) COURT FOR THE WESTERN
) DISTRICT OF KENTUCKY
CBS CORPORATION; CRANE COMPANY; )
JOHN CRANE, INC; and IMO INDUSTRIES, )
INC., )
)
Defendants. )
BEFORE: MOORE, ROGERS, and SENTELLE,* Circuit Judges.
ROGERS, Circuit Judge. Carol Lee Stallings brought this diversity action on behalf of
herself and the estate of her late husband, seeking damages from the Georgia-Pacific Corporation
for the asbestos-related illness that ultimately took his life. After enduring near-constant
exposure to asbestos for some four years in the U.S. Navy, Mr. Stallings worked for several more
years with a Georgia-Pacific product containing asbestos at his job finishing drywall. Neither of
the medical experts that Stallings consulted for this suit, however, could quantify the extent of
her husband’s exposure resulting from his contact with Georgia-Pacific’s products, and instead
*
The Honorable David B. Sentelle, Senior United States Circuit Judge for the District of Columbia Circuit,
sitting by designation.
No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
testified that any further exposure would have contributed to the development of his disease.
Heeding this court’s decisions rejecting evidence of that kind as too insubstantial under
Kentucky’s standard for causation, the district court accordingly granted summary judgment for
Georgia-Pacific, and Stallings now appeals. Because this court’s precedents clearly foreclose the
theory of causation on which Stallings relies against Georgia-Pacific, and the Kentucky Supreme
Court has not clearly indicated that it would rule otherwise, the district court’s grant of summary
judgment was proper.
During his nearly four years in the Navy, William Stallings served aboard the destroyer
USS Waller, helping to operate and maintain the ship’s boilers. In that job he worked daily on
and amid the ship’s valves, pumps, piping, boilers, and turbines, all the while breathing in the
asbestos-laced dust that their insulation and other coating materials gave off. The resulting
asbestos exposure that he endured was, by all accounts, considerable.
After leaving the service Stallings went to work as a drywall finisher, first for
Timmerman Drywall for a year, and then for Stigler Drywall for another two. In those jobs, too,
Stallings regularly encountered asbestos-laden materials, this time in the form of the “mud” that
he and his fellow finishers used to paste together drywall panels and which they later sanded
down, stirring up asbestos-tainted dust. Stallings would later identify one of the materials he
used on those jobs—and whose asbestos-laced dust he inhaled multiple times a week—as
Bestwall, a product of the Georgia-Pacific Corporation. Several years later, while finishing two
rooms in his home, Stallings again used a Georgia-Pacific drywall mix containing asbestos, and
for two weeks or so inhaled the dust that the dried mixture unleashed when sanded.
In September 2011, Stallings received a diagnosis of mesothelioma, an incurable cancer
resulting from exposure to asbestos. A year later he filed suit in Kentucky state court against
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Georgia-Pacific and the other manufacturers of the asbestos-containing products he had been
exposed to decades earlier, seeking punitive damages under theories of strict liability and
negligence. His wife, Carol Lee, also claimed damages for loss of consortium. The case was
later removed to the federal district court, and proceeded there until September 2013, when
Stallings died of complications related to his mesothelioma. Soon after, Carol Lee Stallings filed
an amended complaint as the surviving spouse and as executrix of Mr. Stallings’ estate, and
added a wrongful-death claim.
The remaining defendants, including Georgia-Pacific, eventually moved for summary
judgment, which the district court granted. Stallings v. Georgia-Pacific Corp., 2015 WL
7258518, at *2 (W.D. Ky. Nov. 17, 2015). As to the claims against Georgia-Pacific, the court
found that Stallings had failed to establish that the company’s products were a substantial factor
in bringing about Mr. Stallings’ cancer, as required for a finding of causation under Kentucky
common law. Id. at *6. Pointing to this court’s line of cases beginning with Martin v.
Cincinnati Gas & Electric Co., 561 F.3d 439 (6th Cir. 2009), the district court noted that in order
for the claims against Georgia-Pacific to survive a motion for summary judgment, Stallings
would have had to provide evidence that the company’s products were probably, rather than
possibly, a “substantial cause” of her husband’s mesothelioma. Stallings, 2015 WL 7258518, at
*6. But Stallings’ medical experts could testify only “that any exposure to asbestos qualifies as a
substantial exposure,” offering no more precise an estimate of how much of that exposure was
due specifically to Georgia-Pacific’s products. Id. Determining that this “any exposure” theory
of causation had been foreclosed by Martin and its progeny, the court concluded that Stallings
therefore could not convince a “reasonable jury that [Mr. Stallings’] exposure to Bestwall was a
probable cause of his mesothelioma,” especially not “in light of his substantial prior asbestos
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exposure while in the Navy.” Id. The district court accordingly dismissed the claims against
Georgia-Pacific, and Stallings now appeals solely from that dismissal.
The district court’s grant of summary judgment was proper because there was not
enough evidence of Stallings’ exposure to Georgia-Pacific’s asbestos-containing products to
establish them as a likely cause of the cancer that took her husband’s life. Under the Kentucky
law that governs this diversity action, see Martin, 561 F.3d at 442, Stallings must show that
Georgia-Pacific’s products were a substantial factor in bringing about Mr. Stallings’ disease
rather than just a factor, see Moeller v. Garlock Sealing Techs., LLC, 660 F.3d 950, 953-54 (6th
Cir. 2011) (citing Deutsch v. Shein, 597 S.W.2d 141, 144 (Ky. 1980)). Because this court has
already rejected the type of evidence on which Stallings relies as simply too insubstantial to
satisfy that standard, Stallings cannot show that Georgia-Pacific was legally responsible for Mr.
Stallings’ injury.
Our precedents foreclose the theory at the heart of Stallings’ case for causation: that any
further exposure to asbestos would have been a substantial factor in bringing about an asbestos-
related disease like mesothelioma. As we held in Moeller and Martin, this “any” or “every
exposure” theory of causation cannot satisfy Kentucky’s “substantial factor” standard, as that
theory would “make every incidental exposure to asbestos a substantial factor,” rendering that
standard, and its substantiality requirement, all but “meaningless.” Martin, 561 F.3d at 443
(citation omitted). Stallings nevertheless appears to rely on exactly that sort of theory in making
her case for causation against Georgia-Pacific. Neither of her two medical experts could
quantify the extent of Mr. Stallings’ exposure to the asbestos in the company’s products, instead
insisting that every further exposure would have contributed to the development of his disease.1
1
Stallings appears to contest this reading of the testimony, contending instead that “[b]oth Dr. Strauchen
and Dr. Frank testified not that each and every exposure was a substantial factor but rather that cumulative
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
But testimony of that kind—the only that Stallings can cite on behalf of her claim that Georgia-
Pacific’s products were legally responsible for her husband’s cancer—is too spare to satisfy
Kentucky’s “substantial factor” test, especially given the evidence of Mr. Stallings’ considerable
daily exposure to asbestos aboard the USS Waller. See Moeller, 660 F.3d at 955. Stallings has
accordingly failed to present evidence showing that those products were a probable, as opposed
to a merely possible, cause of Mr. Stallings’ disease. Under Kentucky law, as this court has
understood it, that failure is not enough to make a reasonable inference of causation, see Martin,
561 F.3d at 443 (citing Bailey v. N. Am. Refractories Co., 95 S.W.3d 868, 873 (Ky. Ct. App.
2001)). Georgia-Pacific was therefore entitled to summary judgment.
This conclusion, moreover, is not undermined by the Kentucky Supreme Court’s decision
in CertainTeed Corp. v. Dexter, 330 S.W.3d 64 (Ky. 2010), a case never mentioned by either
party until this court requested supplemental briefing to address it. CertainTeed came down a
year after this court decided Martin, which, as explained, squarely rejected the “every exposure”
theory as inconsistent with Kentucky’s “substantial factor” test for causation. Just a year after
CertainTeed was decided, this court once again applied Martin’s holding in Moeller, without
considering or indeed even mentioning the intervening ruling in CertainTeed and what impact, if
any, it had on Martin’s rejection of the “every exposure” theory. Our published reaffirmance in
Moeller of Martin would therefore raise a difficult issue regarding stare decisis if the Kentucky
Supreme Court had squarely adopted the “every exposure” theory in CertainTeed. However, it is
far from clear that the CertainTeed court actually endorsed that theory.
exposures were the facts that caused mesothelioma and further dose would implicate greater degree of culpability.”
That, however, is simply not borne out by the record. Asked whether “every exposure . . . is a substantial cause of
mesothelioma,” Strauchen agreed, noting that “[e]very exposure above background . . . is a contributing cause of the
mesothelioma.” Frank in his deposition likewise agreed that “any asbestos exposure counts as a contributing
factor,” adding that “in someone’s life, some products may contribute more, some contribute less, but they all
contribute.”
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
CertainTeed involved a trial court’s grant of a new trial for several corporate defendants
whose products, much as in this case, had allegedly exposed the plaintiff Dexter to asbestos. In
the original trial the jury had declined to apportion any fault to several other empty-chair
defendants, while in the second trial ordered by the trial court substantial percentages of fault
were assigned to those defendants. The intermediate appellate court reinstated the original
verdict declining to apportion fault to the empty-chair defendants, and the defendants obtained
review in the Kentucky Supreme Court.
The Kentucky Supreme Court noted at the outset that:
[No] party in the present appeal challenged the appropriateness of the trial court's
approach to the strict liability and negligence claims against CertainTeed and the
other defendants, though there may be questions about whether both types of
claims can be pursued against any single defendant. These issues, and others, may
have been the subject of the appeal and cross-appeal of the second trial but were
not addressed because of the Court of Appeals' resolution of reinstating the
original judgment. Such issues are not currently before this Court.
CertainTeed, 330 S.W.3d at 70–71. The court went on to examine “certain subsidiary issues,”
but:
only to the extent necessary to resolve the primary issue of the appropriateness of
the trial court’s grant of a new trial. For the most part, this opinion addresses
those subsidiary issues as they have been framed by the parties, without further
complication by other issues that might be unresolved, either because they have
not been raised or have not yet been addressed by the Court of Appeals.
Id. at 71.
With this highly limiting qualification in place, the court proceeded to explain that
“[e]mpty-chair defendants who have settled are to be treated no differently than participating
defendants in regard to what must be proved to apportion fault against them.” Id. at 73-74.
Then, applying a deferential “clearly erroneous” standard of review to the trial judge’s
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
determination to order a new trial, the Supreme Court found sufficient evidence to support the
grant of a new trial.
In conducting that deferential review, the Supreme Court detailed “[a] plethora of
evidence show[ing] that Dexter was exposed to asbestos by many of the empty-chair
defendants,” id. at 75, and that with respect to causation, “there was other, more specific
evidence of legal causation,” id. at 77.
To be sure, the Supreme Court relied “first and foremost” on the testimony of two
doctors—one of Dexter’s own experts at trial as well as his treating physician—who advanced an
“every exposure” theory against the empty-chair defendants. See 330 S.W.3d at 78. The court,
however, also relied on the testimony of another of Dexter’s medical experts, Dr. Hammar. He
had explained at trial—apparently at odds with the “every exposure” theory—that whether a
product containing asbestos could be said to cause a related injury depended on “the intensity,
the duration, and the number of years or months or whatever they were exposed to it,” id. at 78
(internal quotation marks omitted). Although the court noted that this testimony did not
necessarily conflict with the empty-chair defendants’ liability, as Dr. Hammar had set no
“minimum cut-off of exposure,” id., the court nevertheless did not expressly rely on that point to
reach its ultimate conclusion about causation—that the trial court had not clearly erred by
“finding it to have been unreasonable for the jury to conclude that none of the empty-chair
defendants contributed at all to Mr. Dexter’s disease,” id. That conclusion was instead premised
on what the court characterized as “prior evidence of these factors and the extremely high
concentration of asbestos fibers in Dexter’s lungs (Dr. Hammar described it as the most he had
ever seen in a pipe fitter’s lungs).” Id. Thus, the “ample evidence” that supported a finding of
causation need not have been the expert testimony as to the “every exposure” theory. It could
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
equally well have been the evidence that the court explicitly cited when drawing its conclusion
on causation: evidence speaking to the intensity and duration of Dexter’s exposure to the
defendants’ asbestos-laden products and the quantity of asbestos later found in his lungs.
In addition, the Supreme Court was “further compelled” by the plaintiffs’ admissions in
their opening statement. In that statement, Dexter’s attorney appeared to concede that, based on
the evidence of Dexter’s exposure to their products, the empty-chair defendants were also at fault
for his injuries, to no small degree:
We’re not trying to suggest that GE or Johns-Manville or some other company
didn't have a role or responsibility. No, we think that there’s many companies
that participated in causing the death of Mr. Dexter. We think these companies
are significant and the evidence will show that they caused Mr. Dexter to have
significant exposure to their products.
Id. at 78 (emphasis added). Although the CertainTeed court declined to rely solely on this
“factual admission” in affirming the trial court, it nevertheless made clear that it saw that
statement as having “no doubt colored the trial court’s perception of the evidence, putting it on
notice that the plaintiff may have been trying to have it both ways.” Id. at 78 n.8.
Thus the Kentucky Supreme Court at most determined that, under a clearly erroneous
scope of review, the district court had found enough evidence of causation to get to a jury in a
case where two doctors relied on an “every exposure” theory, but another doctor testified in
favor of causation without relying on such a theory, and plaintiffs’ original opening statement—
asserting causation—“further compelled” deference to the trial court’s determination. This
analysis hardly requires the conclusion that “every exposure” expert testimony is by itself
sufficient to get to a jury.
This is perhaps why we took no notice of CertainTeed in once again rejecting that theory
in Moeller, and why the parties in that case, like those now before the court, did not even think to
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
raise CertainTeed themselves.2 In any event, it is clear enough that the CertainTeed court has
not unequivocally resolved the issue. In the absence of clearer ruling from Kentucky’s highest
court, keeping in mind this court’s duty to “attempt to ascertain how that court would rule if it
were faced with the issue,” Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178, 1181 (6th Cir.
1999), the fairer conclusion is that the evidence does not yet definitively indicate that that court
would embrace the “every exposure” theory. Until Kentucky’s courts have more clearly signaled
their readiness to accept that theory, we are bound to reject it here once again, in line with this
court’s decisions in Moeller and Martin.
The judgment of the district court is affirmed.
2
The Kentucky Court of Appeals has recently reviewed the law on causation in mesothelioma cases, also
without relying on or citing CertainTeed. See Mannahan v. Eaton Corp., ___ S.W.3d ___, 2016 WL 3887037, at
*2–4 (Ky. Ct. App. July 15, 2016).
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
KAREN NELSON MOORE, Circuit Judge, dissenting. I disagree with the majority
that the “any” or “every exposure” theory of causation is foreclosed by our holding in Martin v.
Cincinnati Gas & Electric Co., 561 F.3d 439 (6th Cir. 2009), and its progeny. Although we are
generally bound by the principles of stare decisis, our decisions in diversity actions are
controlling only insofar as the state supreme court remains silent on the matter. Where, as here,
a state supreme court later clarifies the state law, we must apply the law in accordance with those
decisions. A year after Martin, the Kentucky Supreme Court made clear in CertainTeed Corp. v.
Dexter, 330 S.W.3d 64 (Ky. 2010), that the “any” or “every exposure” theory is an acceptable
theory of causation that can satisfy Kentucky’s “substantial factor” standard. Because I believe
that CertainTeed controls this case, I respectfully dissent.
As a federal court sitting in diversity, we are obliged to “apply state law in accordance
with the controlling decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty Rent-A-Car
Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). Although it is our duty, where the state’s highest court is silent, to “ascertain from all
available data what the state law is,” Bailey v. V&O Press Co., 770 F.2d 601, 604 (6th Cir.
1985), where the state supreme court subsequently issues a decision contrary to our own, we are
required to adopt prospectively the state decision clarifying state law. See Vandenbark v.
Owens-Illinois Glass Co., 311 U.S. 538, 543 (1941) (“appellate tribunals . . . should conform
their orders to the state law as of the time of the entry”); Rutherford v. Columbia Gas, 575 F.3d
616, 619 (6th Cir. 2009).
In Martin, we held that the theory on which Stallings relies, that “any” or “every
exposure” is a substantial cause of his asbestos-related injury, was insufficient to prove causation
under Kentucky law, because “it would render the substantial factor test ‘meaningless.’” Martin,
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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.
561 F.3d at 443–44. Subsequent to our holding in Martin, however, the Kentucky Supreme
Court in CertainTeed relied on the same “every exposure” theory to support a finding of
causation. CertainTeed, 330 S.W.3d at 78. Specifically, in assessing the liability of certain
empty-chair defendants who manufactured asbestos-containing products, the CertainTeed court
held that “the primary evidence of causation in this case was from the medical experts” who
testified that “every single exposure to asbestos would have been the legal cause of [plaintiff’s]
illnesses.” Id. at 77–78. Testimony from two experts who advanced this theory, and one other
expert whose testimony was consistent with that theory, provided “ample evidence” that
exposure to the empty-chair defendants’ products was a substantial factor in bringing about
plaintiff’s injury. Id. The Kentucky Supreme Court concluded that “there was uncontroverted
evidence that each exposure to asbestos would have been a legal cause of [plaintiff’s] injuries.
Consequently, the evidence of exposure to the empty-chair defendants’ products means that they
must have legally caused some portion of [plaintiff’s] injuries.” Id. at 78–79 (emphasis added).
Rather than follow the Kentucky Supreme Court’s decision, the majority attempts to
distinguish CertainTeed, arguing that the state court did not squarely adopt the “every exposure”
theory. They point, first, to the limiting language contained in the opinion. That language,
however, has no bearing on the question of legal causation, or the appropriateness of the “every
exposure” theory in proving causation. The state supreme court declined to review wholly
separate issues that had been the subject of prior proceedings, including the scope of the second
trial, and whether plaintiff could bring both strict liability and negligence claims against each
defendant.1 Id. at 70–71. After outlining what questions were not at issue, the CertainTeed court
went on to address the questions that were, including “what a defendant must prove to obtain
1
Both strict liability and negligence claims require that a plaintiff establish causation. Holbrook v. Rose,
458 S.W.2d 155, 157 (Ky. 1970). The distinction is therefore irrelevant for our purposes.
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apportionment against an empty-chair defendant.” Id. at 71. Even under a deferential “clearly
erroneous” standard, this “require[d] that there was evidence sufficient to prove fault on the part
of at least some of the empty-chair defendants.” Id. at 74. The state supreme court opinion
makes clear that this holding required evidence of legal causation. Id. at 77. The acceptability of
the “every exposure” theory fits squarely within the scope of the narrow question before the
Kentucky Supreme Court. Under these circumstances, we are not entitled to disregard the
decision of the state supreme court on the basis of contradictory precedent from our circuit.
The majority next contends that the state court’s adoption of the “every exposure” theory
is not binding because the evidence supporting a finding of causation in CertainTeed “could
equally well have been” additional evidence cited by the court. The majority mischaracterizes
the CertainTeed court’s treatment of this additional evidence. None of the additional evidence
was alone sufficient to support the court’s ultimate conclusion that there was evidence of
causation. The Kentucky Supreme Court explicitly rejected the argument, advanced here by the
majority, that Dr. Hammar’s testimony contradicted the “every exposure” theory. Id. at 78. It
noted, instead, that Dr. Hammar’s testimony was “consistent with” the testimony of plaintiffs’
expert and treating physician, and that a contrary interpretation “would only work if Dr. Hammar
had set a minimum cut-off of exposure.” Id. In other words, the testimony he provided
regarding the intensity and duration of exposure was not dispositive unless he also established
the level at which exposure could be classified a substantial factor. In addition, the admission
made by plaintiff’s counsel in their opening statement was not sufficient to prove causation. In
fact, the Kentucky Supreme Court specifically declined to affirm the trial court “solely on the
basis of counsel’s opening statement.” Id. at 78 n.8. None of the additional evidence was
sufficient to support a finding of substantial causation.
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In contrast, adoption of the “every exposure” theory was necessary to the outcome in
CertainTeed. Even if the court did rely on additional evidence such as the “high concentration of
asbestos fibers in [plaintiff’s] lungs,” there was no other testimony about what level of exposure
was sufficient to cause the injury. Id. at 78. The Kentucky Supreme Court made clear that
evidence of exposure was insufficient to prove causation; it required a showing that the exposure
was a substantial factor in bringing about the injury. Id. at 77. The court relied upon the “every
exposure” theory to determine the level at which exposure is considered a substantial factor. Id.
at 78. The conclusion reached by the Kentucky Supreme Court is simply not possible unless the
court squarely adopted the “every exposure” theory as an acceptable theory of causation.
As the majority notes, one year after CertainTeed was decided, we reaffirmed Martin’s
rejection of the “every exposure” theory without any reference to CertainTeed. See generally
Moeller v. Garlock Sealing Tech., LLC, 660 F.3d 950 (6th Cir. 2011). The majority argues that
Moeller did not address CertainTeed because the Kentucky Supreme Court’s limited holding did
not alter our prior rejection of the “every exposure” theory. Yet the majority admits that Moeller
failed to consider or even mention the CertainTeed case. There is nothing to suggest that the
failure to mention the case in Moeller, which was issued just a year after CertainTeed, was
anything more than an oversight. Our duty to adhere to the decisions of state supreme courts in
diversity cases may not be evaded merely because our cases mistakenly overlook prior state
court decisions. See United States v. Maness, 23 F.3d 1006, 1009 (6th Cir. 1994) (disregarding a
Fourth Circuit case that failed to follow a contrary prior state supreme court decision); Factors
Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278, 283 (2d Cir. 1981) (“A federal court . . . would be
obliged to disregard a state law holding by the [federal] court of appeals if persuaded . . . that
prior state court decisions had been inadvertently overlooked by the pertinent court of appeals”).
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“Where a state’s highest court has spoken to an issue, we are bound by that decision
unless we are convinced that the high court would overrule it if confronted with facts similar to
those before us.” Kurczi v. Eli Lilly & Co., 113 F.3d 1426, 1429 (6th Cir. 1997) (quoting Kirk v.
Hanes Corp., 16 F.3d 705, 707 (6th Cir. 1994)). I find no justification for straying from
CertainTeed on the basis of the facts in this case. In fact, the testimony provided by Stallings’s
experts is indistinguishable from the medical testimony on which the CertainTeed court relied.
Stallings’s expert, Dr. Arthur L. Frank, who also testified on behalf of the plaintiff in
CertainTeed, testified that “[t]he cumulative exposures that [Stallings] had to asbestos from any
and all products containing any and all fiber types would have contributed to his developing this
malignancy.”2 R. 172–4 (Frank Dep. at 43–44) (Page ID #5642). Stallings’s other medical
expert, Dr. James Strauchen, expressed a similar view. He stated that “[a]ll of [Stallings’s]
exposures to asbestos would have been substantial causes of his mesothelioma.” R. 172–6
(Strauchen Dep. at 21) (Page ID #5703).
In declining to adopt the “every exposure” theory, the majority makes the odd assertion
that
the Kentucky Supreme Court at most determined that, under a clearly erroneous
scope of review, the district court had found enough evidence of causation to get
to a jury in a case where two doctors relied on an “every exposure” theory, but
another doctor testified in favor of causation without relying on such a theory, and
the plaintiffs’ original opening statement—asserting causation—“further
compelled” deference to the trial court’s determination.
Maj. Op. at 8. I reject this interpretation, which essentially limits the CertainTeed holding to the
very specific facts of that case. However, even accepting the majority’s narrow read of
CertainTeed, I find no reason to come to a different conclusion here. Stallings did not rely solely
2
In CertainTeed, the Kentucky Supreme Court cited with approval Dr. Frank’s statements that “[e]very
exposure [plaintiff] would have had in all the years that he would have been exposed to any and all products would
have added to his burden and would have contributed to the development of both of [his] diseases.” CertainTeed,
330 S.W.3d at 78.
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on the “every exposure” theory. In his deposition, Stallings stated that he had personal
knowledge of using Georgia-Pacific products when working as a drywall finisher at two separate
companies, R. 180–2 (Stallings Dep. at 25; 39–42) (Page ID #5799; 5803–04), and when
working on a two-week project in his own home, id. at 47–50 (Page ID #5805–06). Anne
Ksionzyk, a corporate representative for Georgia-Pacific, testified that the specific brands that
Stallings used contained asbestos. R. 194–3 (Ksionzyk Dep. at 85–90) (Page ID #6584–85). In
addition to his testimony regarding the “every exposure” theory, Dr. Strauchen specifically said
that Stallings’s exposure to Georgia-Pacific products was a contributory factor to his illness.
R. 172–6 (Strauchen Dep. at 38–40) (Page ID #5708). This evidence, when paired with medical
testimony regarding the “every exposure” theory, is sufficient to establish legal causation under
Kentucky law.
The Kentucky Supreme Court’s adoption of the “every exposure” theory is binding on
this court. Stallings made a sufficient showing of legal causation by offering medical testimony
that “every exposure” was sufficient to cause his injuries and additional testimony demonstrating
exposure to asbestos contained in Georgia-Pacific’s products. Because I would reverse the
district court’s grant of summary judgment to Georgia-Pacific, I respectfully dissent.
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