Goldman v. Johns-Manville Sales Corp.

Supreme Court of Ohio · Torts

Tortsalternative liabilitymarket-share liabilitycausationasbestos litigationsummary judgmentalternative liabilitymarket-share liability

Facts

The plaintiff sought recovery for Roy Goldman's asbestos-related injury or death allegedly arising from work at Sherlock Bakery. In opposing summary judgment, the plaintiff offered affidavits and deposition testimony attempting to show asbestos-containing products were present at the bakery, but the court found most of that evidence lacked personal knowledge and was insufficient under Civ. R. 56. The only asbestos-containing product sufficiently shown to have been present was asbestos tape used in at least one oven, supplied by Toledo distributor Sussman Asbestos Co. The record did not show that any remaining defendant supplied that tape to the bakery, although Johns-Manville made tape and Sussman distributed Johns-Manville products generally.

Issue

Whether alternative liability, as recognized in Minnich, applies where the plaintiff cannot prove that any defendant before the court supplied the asbestos-containing product that caused the injury. If not, whether the court should recognize market-share liability in this asbestos case.

Rule

Alternative liability shifts the burden of causation only after the plaintiff proves that two or more defendants committed tortious acts and that the plaintiff was injured as a proximate result of the wrongdoing of one of those defendants. In asbestos litigation, that requires proof of exposure to asbestos-containing products supplied by defendants before the court; the doctrine does not apply where there is no evidence that any remaining defendant furnished any asbestos product to the site. Market-share liability is inappropriate in asbestos litigation, especially where the products to which the injured party was exposed are not shown to be completely fungible.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Evan Porter worked in a commercial laundry in Akron, Ohio and later developed an asbestos-related illness. In opposing summary judgment, his estate produced admissible testimony that asbestos rope packing was used on one machine, but could not show that any manufacturer still in the case supplied that rope packing to the laundry.

May the estate rely on alternative liability to shift the burden of causation to the remaining manufacturers?

Explanation. Alternative liability is only a limited relaxation of specific-defendant identification; it does not eliminate causation altogether. The plaintiff must still prove that two or more defendants committed tortious acts and that the injury was caused by one of those defendants. In an asbestos case, that requires evidence connecting defendants before the court to asbestos-containing products at the site. Here, no such nexus exists, so burden shifting is improper. (Derived from Goldman v. Johns-Manville Sales Corp. (n.d.).)