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Martin v. Cincinnati Gas & Elec. Co.

United States Court of Appeals for the Sixth Circuit

October 29, 2008; January 27, 2009; January 27, 2009 1, Filed

File Name: 09a0061n.06

No. 07-6385

Opinion

 [*440]  McKEAGUE, Circuit Judge. Dennis Martin ("Mr. Martin") died from malignant mesothelioma on March  [**2] 22,  [*441]  2002. His son, David Martin ("Plaintiff"), serving as executor of his father's estate, filed a complaint based on asbestos exposure in Kentucky state court against nine defendants. Defendants removed the case to the Eastern District of Kentucky based on diversity.

After various defendants settled or were dismissed from the suit, claims remained against Cincinnati Gas & Electric Company ("CG&E"), General Electric ("GE"), and General Motors ("GM"). The claims against CG&E and GE were based on asbestos that Mr. Martin's father, Vernon Martin, brought home on his work clothes while working for CG&E. The claim against GM was based on Mr. Martin's alleged exposure to asbestos while working as a ship mechanic from 1979 to 1984. The district court found that Plaintiff did not raise an issue of material fact regarding causation in his claim against GM, and so granted summary judgment to GM. The district court also granted summary judgment for CG&E and GE because the injury to Mr. Martin was not foreseeable at the time of exposure. Plaintiff appeals both orders. For the reasons given below, we affirm the district court's orders.

I. BACKGROUND

Mr. Martin's father worked for CG&E for thirty-eight  [**3] years. He began working for CG&E in 1951 as a laborer. Within a year, he was promoted to mechanic. His work at CG&E during this period involved underground power lines. The work brought him into contact with fireproofing that contained asbestos. In the 1950's, he worked with fireproofing every month or two. One power line in particular, the "66," was treated only with asbestos. Mr. Martin's father worked on the 66 "[q]uite a few" times. In 1963, he was promoted to equipment operator, where he operated heavy excavating machinery. In 1973, he was promoted to senior mechanic in underground utilities. The district court found that his work with asbestos lasted from 1951 to 1963. Martin v. Gen. Elec. Co., No. 02-201-DLB, 2007 U.S. Dist. LEXIS 98458, 2007 WL 2682064, at *1-2 (E.D. Ky. Sept. 5, 2007). Plaintiff does not challenge that finding on appeal. As Mr. Martin was born in 1952, the relevant asbestos exposure occurred between 1952 and 1963.

Internal memoranda indicate that CG&E used asbestos products. Several documents from CG&E also indicate that GE provided asbestos products to CG&E. A memo from 1948 notes an order from GE for "asbestos gaskets." Another order indicates that CG&E purchased pipe insulation from  [**4] GE. Several other memos indicate that GE provided most of the materials for CG&E pipes.

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561 F.3d 439 *; 2009 U.S. App. LEXIS 1702 **; 2009 FED App. 0061N (6th Cir.); 2009 WL 188051

David Martin, Plaintiff-Appellant, v. Cincinnati Gas and Electric Company, General Motors Corporation, General Electric Company, Defendants-Appellees.

Subsequent History: Designated for Publication March 30, 2009.

Prior History:  [**1] ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY.

Martin v. GE Co., 2007 U.S. Dist. LEXIS 98458 (E.D. Ky., Sept. 5, 2007)Martin v. Cincinnati Gas & Elec. Co., 2006 U.S. Dist. LEXIS 98186 (E.D. Ky., May 25, 2006)

CORE TERMS

asbestos, exposure, bystander, gaskets, foreseeable, insulation, products, summary judgment, district court, asbestos exposure, engine, exposure to asbestos, substantial factor, manufacture, causation, employees, secondary, cases, dust, work clothes, overhauls, precut

Civil Procedure, Preliminary Considerations, Federal & State Interrelationships, Erie Doctrine, Appeals, Standards of Review, De Novo Review, Summary Judgment Review, Standards of Review, Judgments, Summary Judgment, Evidentiary Considerations, Burdens of Proof, Nonmovant Persuasion & Proof, Evidentiary Considerations, Scintilla Rule, Torts, Elements, Causation, Causation in Fact, Negligence, Elements, Proof, Evidence, Province of Court & Jury, General Overview, Duty, Foreseeability of Harm, Products Liability, Theories of Liability, Negligence