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Black v. Abex Corporation12/22/1999
s market share liability is inappropriate in a "shotgun" asbestos case, where the plaintiff is alleging injury from exposure to many different types of asbestos products. Black asserts, however, market share liability may be appropriate when the plaintiff seeks to hold liable only manufacturers of one type of asbestos-containing product. Relying upon Wheeler v. Raybestos-Manhattan, 11 Cal.Rptr.2d 109 (Cal. Ct. App. 1992), Black asserts she should be allowed to proceed in her market share claims against the manufacturers of asbestos-containing "friction products," including brake and clutch products. In Wheeler, the California Court of Appeal held a plaintiff could proceed on a market share theory against manufacturers of asbestos-containing brake pads. The court overturned the trial court's order granting a non-suit in favor of the manufacturers, concluding the plaintiff's offer of proof sufficiently alleged that the brake pads, although not identical, were "fungible" because they contained percentages of asbestos within a "restricted range" of between forty and sixty percent and posed nearly equivalent risks of harm. Id. at 111-12.
[ ] Black requests that we recognize market share liability as a viable tort theory under North Dakota law. Black further requests that we follow Wheeler and hold that automotive "friction products," including asbestos-containing brake and clutch products, are sufficiently fungible to support a market share claim.
B
[ ] Before reaching the merits of Black's claims, we must resolve a conflict over the procedural posture of this case and the appropriate standard of review.
1
[ ] Black asserts the defendants' motions, although titled motions for summary judgment, were in substance motions for judgment on the pleadings under N.D.R.Civ.P. 12(b)(v). Black thus asserts all factual allegations in her complaint must be taken as true and dismissal was appropriate only if there was no set of facts under which she was entitled to relief. See, e.g., Perry Center, Inc. v. Heitkamp, 1998 ND 78, 42, 576 N.W.2d 505.
[ ] The defendants' motions are clearly titled motions for summary judgment, and specify they are based upon N.D.R.Civ.P. 56 and all of the files and records in the case. In their memoranda in support of the motions, the defendants specifically allege lack of evidence of fungibility of the products which Black claimed caused her husband's injury . Black asserts that, because the defendants failed to submit affidavits or citations to specific parts of the record to support their motions, the motions were not properly summary judgment motions under N.D.R.Civ.P. 56, but were motions for judgment on the pleadings under N.D.R.Civ.P. 12(b)(v). She therefore asserts she had no duty to present evidence to support the allegations in her complaint.
[ ] Black has misconstrued the showing required when a defendant moves for summary judgment seeking dismissal of claims. Our Rule 56 is virtually identical to the corresponding federal rule, and we will look to federal court interpretations of the federal rule as persuasive. Continental Casualty Co. v. Kinsey, 513 N.W.2d 66, 69 (N.D. 1994); Farmers Union Oil Co. v. Harp, 462 N.W.2d 152, 154 (N.D. 1990). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), the United States Supreme Court addressed the showing required to support a motion for summary judgment. In that case, a federal circuit court had held a defendant who failed to present evidence of a lack of a genuine issue of fact had failed to properly support its summary judgment motion, thereby relieving the plaintiff of the duty to present evidence demonstrating an issue of fact. The Supreme Court reversed, emphasiz
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