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Black v. Abex Corporation12/22/1999
Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable Bruce E. Bohlman, Judge.
AFFIRMED.
[ ] Rochelle Black appeals from a summary judgment dismissing her wrongful death and survival claims premised upon market share or alternative liability against numerous asbestos manufacturers. Concluding Black has failed to raise a genuine issue of material fact which would preclude summary judgment, we affirm.
I.
[ ] Rochelle Black's husband, Markus, served in the Air Force as an auto mechanic from 1971 to 1986. He died of lung cancer in 1991. Black sued forty-eight asbestos manufacturers, alleging her husband's death had been caused by his occupational exposure to asbestos-containing products. Included in her complaint were claims based upon market share and alternative liability.
[ ] The defendants moved for partial summary judgment requesting dismissal of the market share and alternative liability claims. The court granted the motion for partial summary judgment and dismissed those claims in its Pretrial Order dated August 29, 1995.
[ ] Subsequently, all remaining claims against the defendants were either settled or voluntarily dismissed prior to the scheduled trial. On February 25, 1999, the court entered a "Concluding Order" covering this and several other consolidated asbestos cases, indicating all of the cases had been "fully and finally disposed of and the time for all appeals of this Court's orders and judgments in those cases has run." Black filed a notice of appeal from the Concluding Order and from the 1995 Pretrial Order granting the motion for summary judgment.
II.
[ ] The defendants assert the appeal should be dismissed because Black waived her right to appeal. They assert Black, through counsel, agreed to the terms of the Concluding Order, which provided that the time for all appeals had run.
[ ] There is no evidence in this record demonstrating Black or her counsel specifically agreed to the terms of the Concluding Order, including the erroneous pronouncement that the time for all appeals had run. Nor do the defendants cite any authority suggesting a trial court can preclude an appeal merely by inserting such language in its final order or judgment.
[ ] The court never certified its dismissal of the market share and alternative liability claims as final under N.D.R.Civ.P. 54(b). Accordingly, the dismissal remained subject to revision and was not final until all claims against all parties were finally resolved by the February 1999 Concluding Order. Hurt v. Freeland, 1997 ND 194, 5, 569 N.W.2d 266. Black could not appeal until all claims were resolved. Id. The defendants concede the February 1999 Concluding Order constituted the final judgment in the case.
[ ] We conclude the defendants have failed to establish waiver and the appeal is properly before us.
III.
[ ] Black asserts the district court erred in dismissing her claims based upon market share liability. She argues market share liability is a viable tort theory under North Dakota law and its application is appropriate under the facts of this case.
A
[ ] The genesis of market share liability lies in the California Supreme Court's decision in Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980). In Sindell, the court held that women who suffered injuries resulting from their mothers' ingestion of the drug DES during pregnancy could sue DES manufacturers, even though the plaintiffs could not identify the specific manufacturer of the DES each of their respective mothers had taken. The court f
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