                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2004-IA-00918-SCT

MONSANTO COMPANY

v.

BOBBY G. HALL, ET AL.


DATE OF JUDGMENT:                          04/15/2004
TRIAL JUDGE:                               HON. FORREST A. JOHNSON, JR.
COURT FROM WHICH APPEALED:                 ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   JAMES LAWRENCE JONES
                                           BRADLEY S. CLANTON
                                           SCOTT W. PEDIGO
                                           ROBERT M. ARENTSON, JR.
                                           ROBERT H. BASS
ATTORNEYS FOR APPELLEES:                   STACEY L. SIMS
                                           ANTHONY SAKALARIOS
NATURE OF THE CASE:                        CIVIL - TORTS
DISPOSITION:                               REVERSED AND RENDERED - 10/06/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, P.J., EASLEY AND CARLSON, JJ.

       CARLSON, JUSTICE, FOR THE COURT:

¶1.    This asbestos product liability case is before us on Monsanto Company’s appeal from

an interlocutory order denying Monsanto’s motion for summary judgment.         A three-justice

panel of this Court previously granted Monsanto’s petition for an interlocutory appeal.   See

M.R.A.P. 5. Today’s case arises from the same litigation which was the subject of our recent

opinion in Gorman-Rupp Co. v. Hall, 908 So. 2d 749 (Miss. 2005).         Consistent with our
decision in Gorman-Rupp, we reverse the trial court’s denial of summary judgment and render

judgment here in favor of Monsanto.

                     FACTS AND PROCEEDINGS IN THE TRIAL COURT1

¶2.     Bobby G. Hall, Thurman Ferguson, Delano Reeves, Israel Stewart, Jr., Wilbert White,

Aubrey Arnold, and James Hemphill worked in at least one common work site, International

Paper in Natchez, Mississippi, and filed this suit against more than 270 defendants, including

Monsanto, for injuries allegedly resulting from exposure to asbestos products, some of which

were Monsanto’s products present at IP in Natchez. 2              Monsanto filed a motion for summary

judgment, claiming that the plaintiffs did not offer sufficient probative evidence regarding the

necessary elements to establish a prima facie case. The trial judge denied summary judgment,

and Monsanto now comes before us on interlocutory appeal as to whether the trial court’s

decision was proper.

¶3.     Monsanto argues that the plaintiffs failed to prove the three elements necessary in a

products liability action to survive summary judgment; namely, sufficient evidence of product

identification, exposure, and proximate cause. See Miss. Code Ann. § 11-1-63 (Rev. 2002).

Monsanto relies on Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th

Cir. 1986), arguing that, although Mississippi had not yet explicitly adopted the specific

“frequency, regularity, and proximity” test from that Fourth Circuit case prior to the


        1
        A more detailed account of the facts, claims of the plaintiffs, and procedural history may be found
in Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 751-53 (Miss. 2005).

        2
         These plaintiffs are the same plaintiffs identified in Gorman-Rupp. Id. at 751.

                                                      2
commencement of this litigation, this test embodies Mississippi law on products liability in

asbestos cases and is proper in proving all three of the required elements; namely, product

identification, exposure, and proximate cause.         Because the plaintiffs’ evidence did not consist

of certain identification of Monsanto’s products (but rather general descriptions of products

like Monsanto’s), Monsanto argues that the plaintiffs fail this test.

¶4.     The plaintiffs argue that because summary judgment deals with existence of genuine

issues of material facts, Monsanto’s argument that a new legal standard should be officially

adopted in Mississippi is misguided.         The plaintiffs further assert that Monsanto must show

first that no genuine issue of material fact existed and that it is entitled to a judgment as a

matter of law. Miss. R. Civ. P. 56(c).

                                              DISCUSSION

¶5.     The standard of review in considering on appeal a trial court’s grant or denial of

summary judgment is de novo. Hataway v. Nicholls, 893 So.2d 1054, 1057 (Miss. 2005);

Miller v. Meeks, 762 So.2d 302, 304 (Miss. 2000) (citing Short v. Columbus Rubber &

Gasket Co., 535 So.2d 61, 63 (Miss. 1988)). See also McCullough v. Cook, 679 So.2d 627,

630 (Miss. 1996).        In considering this issue, we must examine all the evidentiary matters

before us, including admissions in pleadings, answers to interrogatories, depositions,

affidavits, etc. Id. at 630.      The movant carries the burden of demonstrating that no genuine

issue of material fact exists, and the non-moving party is given the benefit of the doubt as to

the existence of a material fact. Id. If no genuine issue of material fact exists and the moving



                                                      3
party is entitled to judgment as a matter of law, summary judgment should be entered in that

party’s favor. Id.

¶6.     Monsanto argues that the plaintiffs failed to submit sufficient probative evidence to

create a genuine issue of material fact to establish the requisite product identification and

exposure requirements and the requisite proximate cause in an asbestos products liability

action to thereby warrant the denial of summary judgment.3               In determining this issue,

Monsanto asks this Court to adopt the Lohrmann standard, arguing that the plaintiffs must

show the frequency, regularity, and proximity of Monsanto’s actual product and its exposure

to the plaintiffs. 782 F.2d at 1162-63.

¶7.     We dealt with this precise issue in another interlocutory appeal which arose directly

from this exact litigation in Gorman-Rupp, which was handed down on Aug. 11, 2005. Both

Gorman-Rupp and Monsanto are among the 274 corporate defendants whom the plaintiffs

sued.       Like Monsanto, Gorman-Rupp filed a motion for summary judgment, which the trial

judge denied.      Gorman-Rupp alleged improper use of unauthenticated documents by Hall and

sought adoption by this Court, in the context of summary judgment for asbestos cases, of the

“frequency, regularity, proximity” standard in Lohrmann.       Gorman-Rupp, 908 So. 2d at 751.

Gorman-Rupp also contended that the plaintiffs did not establish that any Gorman product used

at IP in Natchez actually contained any asbestos. Id.



        3
         The only difference in the issues in Gorman-Rupp and today’s case is that in Gorman-Rupp, there
was the added issue of unauthenticated documents, whereas in today’s case, there is the added issue of
product identification.

                                                   4
¶8.      Monsanto urges this Court to follow the trend of adopting the Lohrmann test, which

was not expressly adopted by this Court until Gorman-Rupp.4               The Third, Fourth, Fifth, and

Eighth Circuits, as well as state courts in Arkansas, Maryland, and New Jersey, have all adopted

Lohrmann.           We joined these jurisdictions in Gorman-Rupp, expressly adopting the

Lohrmann test. Id. at 754-57 Monsanto correctly points out that Mississippi law in asbestos

cases embodies that test. Indeed, before this Court had adopted the Lohrmann test in Gorman-

Rupp, we had noted it as “persuasive.” Prescott v. Leaf River Forest Prods., Inc., 740 So. 2d

301, 311 (Miss. 1999). The plaintiffs argue that this Court should not adopt this test, at least

not in this case, because that test lays out a standard for substantial causation not at issue here.

 However, because of our recent decision in Gorman-Rupp, the plaintiffs’ position is without

merit.       Thus we again hold that in asbestos litigation cases, the frequency, regularity, and

proximity test is the proper standard in determining exposure and proximate cause.                So that

there can be no question, we today add product identification to that standard as well.

¶9.      Because the plaintiffs have failed to prove product identification, exposure, and

proximate cause of Monsanto’s products with any regularity, frequency, or proximity to the

plaintiffs, consistent with our holding in Gorman-Rupp, the plaintiffs’ case fails.




                                             CONCLUSION

         4
         Of course, Monsanto filed its petition for interlocutory appeal and subsequent briefs prior to our
recent decision in Gorman-Rupp.

                                                     5
¶10.    In asbestos litigation in Mississippi, the proper test to be used is the frequency,

regularity, and proximity standard to show product identification of the defendants’ actual

products, exposure of the plaintiffs to those products, and proximate causation as to the

injuries suffered by the plaintiffs.   Without question, today’s plaintiffs have fallen well short

of meeting the Lohrmann test as adopted by this Court in Gorman-Rupp. For these reasons,

we reverse the Adams County Circuit Court’s denial of summary judgment and render

judgment here in favor of Monsanto finally dismissing the plaintiffs’ complaint and this action

with prejudice.

¶11.    REVERSED AND RENDERED.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND DICKINSON, JJ.,
CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ
AND RANDOLPH, JJ., NOT PARTICIPATING




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