                             NOT RECOMMENDED FOR PUBLICATION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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


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).

                                                      -9-
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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


       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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


        “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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No. 15-6387, Stallings v. Georgia Pacific Corp., et al.


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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