This opinion is fully consistent with the views expressed by Judge Kelly during 1 the panel's conference following the oral argument of the case. Because of illness , Judge Kelly i s presently unable to review the opinion, which is filed without awaiting his express concurrence to avoid undue delay.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 98-1302

_____________ Hazel Chism, Patricia Meier, * Mark Chism, Kent Chism, * * Appellants, * Appeal from the United States * District Court for the v. * Eastern District of Missouri. * W.R. Grace & Company, * * Appellee. *

_____________ Submitted: September 21, 1998 Filed: October 21, 1998

_____________ Before BOWMAN, Chief Judge, WOLLMAN, and KELLY, Circuit Judges. 1

_____________ BOWMAN, Chief Judge. Glenwood Chism, an employee of A.P. Green Refractories Company ("A.P

. Green"), di ed from malignant mesothelioma, a cancer affecting the lining of the lungs
ass ociated with exposure to asbestos. The widow and children of Mr. Chis m ("appellants") sued numerous manufacturers of asbestos -containing products, includingThe Honorable Carol E. Jackson, United States District Judge for the Eastern 2 District of Missouri. -2- W.R. Grace & Company ("Grace"), for wrongful death, negligence, and strict liability, asserting that M r. Chism contracted mesothelioma through exposure to their products during his employment with A.P. Green. The District Court granted summary 2 judgmen t in favor of all manufacturers on the ground that appellants had failed t o establish a causal connection between the manufacturers' products a nd the injury to Mr. Chism. Appellants appeal only the grant of summary judgment in favor of Grace. We affirm.
I.
Mr. Chism worked for A.P. Green from 1952 until 1985. Mr. Chism testified in hi s deposition that he worked as a mixing operator and bagger in the specialtie s department at A.P. Green's Mexi co, Missouri plant from 1952 to 1955 and again from 1957 to 19 64. As a mixing operator, Mr. Chism would dump raw ingredients fro m overhead bins into a cart according to a rec ipe. Mr. Chism testified that he also would hand-scoop c ertain materials, such as raw asbestos, into the mixture. After a product
was mixed , it was fed into a special machine for bagging. During the mixing an d bagging process, Mr. Chism was exposed to large amounts of dust from raw asbestos, vermiculite, and other materials. Mr. Chism testified that he performed various other duties for A.P. Green after 1964, although he occasionally returned to the specialties departme nt

for brief periods of time. Mr. Chism left the company on December 31 , 1985, and died on June 7, 1994.

Mr. Chism testified that one of the materials he added to mixtures when h e worked in the specialties department was Zonolite vermiculite. The Zonolite Company originally m anufactured Zonolite vermiculite and Grace continued to manufacture the product after it purchased the Zonolite Company in April 1963. Vermiculite is a-3-

min eral that is mined, processed, heated (expanded), and sold for a variety of uses

. Raw vermiculite ore sometimes contains asbestos contaminants in the form of tremolite. According to Grace, processing and expanding the vermiculite can remove virtually all asbestos contaminants although a trace amount may remain.
II.
We review the District Court's grant of summary judgment de novo. Se e Hind man v. Transkrit Corp. , 145 F.3d 986, 990 (8th Cir. 1998). We must view th e facts in the light most favorable to appellants, giving them the benefit of all reasonable inferenc es to be drawn from the underlying facts. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). We will affirm the grant of summary judgment if the record shows that "there is no genuine issue as to any material fact and that the moving p arty is entitled to a judgment as a matter of law." Fed. R. Civ. P

. 56(c).
Once Grace meets its initial burden of showing there is no genuine issue o f material fact, appellants m ay not rest upon the allegations of their pleadings but rather mustset for th specific facts, by affidavit or other evidence, showing that a genuin e issue of material fact exists. SeeFed. R. Civ. P. 56(e). Appellants "must do more than si mplyshow that there is some metaphysical doubt as to the material facts, " Matsushi ta , 475 U.S. at 586; they must show there is sufficient evidence to support a jury verdict i n their favor. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 24 9 (1986). Rule 56(c) "mandates the entry of summary judgment, after adequate time for dis covery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which tha t party will bear the burden of proof at trial." Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986).-4-

This is a diversity action in which Missouri law applies. Appellants hav e assert ed claims for negligence, strict liability, and wrongful death. In a negligenc e claim, Mis souri law requires a plaintiff to establish a causal connection between th e defendant's conduct and the plaintiff's resulting injury. See Kraus v. C elotex Corp. , 925 F. Supp. 646, 651 (E.D. Mo. 1996) (citing Zafft v. Eli Lilly & Co. , 676 S.W.2d 241, 244 (Mo. 1994)). A causal connection between the defendant and the injury-producing agen t must also be established in strict liability claims. See id. (citing Zafft , 67 6 S.W.2d at 24 4). To establish the necessary causal connection, appellants must prove both causation in fact ("but for" causation) and proxim ate causation. See Paull v. Shop 'N Save Wareh ouse Foods, Inc. , 890 S.W.2d 401, 403 (Mo. Ct. App. 1995). Th e Missouri Supreme Court has stressed that "but for causation" is an absolute minimum because it establishes causation in fact. See Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 862 (Mo. 1993). In wrongful death cases based on asbestos exposure, Missouri law requires the plaintiff to establish tha

t each "defendant's products directly contributed to the death." Kraus , 925 F. Supp. at 651 (citing Hagen v. Celotex Corp. , 816 S.W.2d 667, 669 (Mo. 1991))

. The "directly contributed" standard requires evidence, in the form of expert testimo ny, "that the product of each defendant sought to be held liable was a 'subs tantial factor' in causing the harm." Hagen , 816 S.W.2d at 670. "Substantia l fa ctor" means the manufacturer's conduct "had such an effect that reasonable peopl e would regard it as the cause of harm." Ray v. Upjohn Co. , 851 S.W.2d 646, 654 (Mo. Ct. App. 1993). If appellants can "only allege that, even when all of the tort-feasors
are taken together, the negligence of the respondents might have contributed to th e death . . . the petition fails to allege facts that indicate that respondents' negligence was a substantial

factor in causing the death." Wollen v. DePaul Health Ctr. , 828 S.W.2d 681, 683 (Mo. 1992). Appe llants misread Callahan when they suggest the Missouri Supreme Court rejected the substantial factor test in favor of a "directly caused or directly contributed-5-

to cause" test. Th e two tests are not mutually exclusive. In fact, as Hagenexplained, "directly contributed" is shown by establishing that each defendant's product was a subs tantial factor in causing the harm. See Hagen , 816 S.W.2d at 673. Appellants '
su ggestedtest arises from Missouri's standard jury instruction in which the jury i s instructed that th e defendant's conduct must "directly cause" or "directly contribute to cause" plaintiff's injury. Callahan , 863 S.W.2d at 863 (citing MAI [Missouri Approved In struction] 19.01). This jury instruction is intended to encompass the term s "proximate cause," "but for causation," an d "substantial factor." See id. The Missouri Supr eme Court has noted that the "substantial factor" language provides the standard for determining whether a submissible case has been made, while "directly caused or directly contributed to cause" is the proper language for a jury instruction. See Hagen , 816 S.W.2d at 673.
Whether the test is phrased as "substantial factor" or as "directly caused o r directly contributed to c ause," appellants have failed to produce sufficient evidence to present a genuine issue of material fact regarding causation. The present case i s analog ous to Hagen , which involved a wrongful death action brought against twelv e asbestos manufacturers by the survivors of a woman who contracted mesotheliom a fromregularly washing her husband's asbestos-covered overalls. The Missour i Supreme Court found the woman's survivors had fai led to establish anything other than "the death was caused by exposure to asbestos dust" and a particular manufacturer' s "produc ts may have supplied the fatal exposure." Id. at 671. The record did no t contain any

expert testimony that the manufacturers' products "directly contributed to the illness and death," and thus did "not establish causation under the standards o f [Missouri] law." Id. at 670-71.
As in Hagan , appellants have failed to produce expert testimony that asbesto s from Grace's products directly contributed to cause Mr. Chism's death. The testimony of app ellants' expert, Dr. Carlos Bedrossian, is evidence that asbestos caused Mr

. Chism's mesothelioma. Dr. Bedrossian testified in his deposition that one asbestosFor this disc ussion of causation, we assume that Grace is liable as a successor 3 in inte rest to the Zonolite Company and thus Mr. Chism's entire exposure to Zonolite vermiculite is attributable to Grace. -6- fiber can star

t the cancer process. Appellants thus assert that one fiber of vermiculite contaminatedwith tremolite (an asbestos element) could have caused Mr. Chism' s death. Although appellants presented substantial evidence through depositio n te stimony that Mr. Chism was exposed to Zonolite vermiculite dust, they failed t o 3 present evidence that the final Zonolite vermiculite product contained any asbestos

. Nor h ave appellants presented evidence that any asbestos possibly contained in th e vermiculite could be released as inhalable fibers. Thus there is no evidenc e that Grace's products could have supplied the fatal exposure.
Ha rashe v. Flintkote Co. , 848 S.W.2d 506 (Mo. Ct. App. 1993), demonstrates how an asbestos plaintiff can meet the causation requirements. In Harashe , a plumber diagnosedwith mesothelioma had been exposed to heavy doses of Zonolite asbestos
on at least two occasions and lesser doses on many other occasions. The plumber , suing only the manufacturer o f Zonolite, presented evidence that his exposure to other asbestos products was limited and that such exposure was not in circumstances where
re spiration of dust would occur and was not to asbestos types that produc e mesothel ioma. In contrast, substantial evidence exists that Mr. Chism frequentl y worked with large quantities of raw asbestos, in situations where respirati on of asbestos dust would occur. In fact, Dr. Bedrossian admitted that Mr. Chism's tremendou s exposure to raw asbestos alone was sufficient to cause his mesothelioma. Therefore, appellants have

failed to present evidence that "but for" his exposure to Zonolite, Mr. Chism would not have contracted mesothelioma. Although Missouri h as not expressly defined the proper standard for proximate
caus ation in asbestos cases beyond stating the substantial factor test, "[t]he Eighth Circuit and a majority of courts have ad opted the 'frequency, regularity, and proximity'Motions for reconsideration cannot be used to introduce new evidence tha t 4 co uld have been produced while the summary judgment motion was pending

. Hagerman v. Yukon Energy Corp. , 839 F.2d 407, 414 (8th Cir. 1988). The evidence pres ented by appellants with their motion for reconsideration appears to have bee n avai lable when they responded to Grace's summary judgment motion. Thus, suc h evidence is not properly before us. We discuss this evidence only to show that even if it were properly before us, it would not change the outcome of the case. -7- standard of proximate causation" to determine if a particular defendant's product is a substantial factor in causing a plaintiff's injury in an asbestos cas e. Kraus , 925 F. Supp. at651-52. This standard has four parts: (1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked. See id. at 652.
As to pr oximate causation, appellants have failed to satisfy the "frequency , regul arity, and proximity" standard. Although appellants may have shown that Mr

. Chism was exposed to Zonolite vermiculite on a regular basis during his years in the speci alties department, appellants have failed to establish that Zonolite vermiculit e containedany asbestos which could have caused the asbestos-related form of cancer from which Mr. Chism died. Appellants' assertion that their experts would testify about the concentration of
a s bestos in Zonolite vermiculite and would link Mr. Chism's death to his exposure to Zonolite is insufficient to overcome the grant of summary judgment. Appellants had had ample time and opportunity to de velop supporting expert testimony, by deposition or affidavit, toshow that a genuine issue of material fact existed when they submitted their response to Grace's summary judgment motion.
The evidence presented by appellants in connection with their motion fo r reconsi deration also fails to establish that Grace's products directly contributed t o 4 cause Mr. Chism's death. The evidence shows that some of the vermiculite depositsWe note this issue has arisen previous ly, with differing results. On February 2, 5 1993, the Missouri Court of Appeals found Grace to be a successor in interest to the Zonolite Company. See Harashe , 848 S.W.2d at 509. On Februa ry 16, 1993, a United States district court reached the opposite result and found Grace is not a successor in interest to Zonolite. See East Prairie R-2 School Dist. v. U.S. Gypsum Co. , 813 F

. Supp 1396, 1402 (E.D. Mo. 1993). Later that same year, another United States district court followed Harasheand found Grac e to be a successor in interest to Zonolite. See T.H.S. Nort

hstar Assocs. v. W.R. Grace & Co.-Conn. , 840 F. Supp. 676, 678-79 (D. Minn. 1993). -8- mined by Zonolite, and later Grace, have an asbestos contaminant (tremolite) as part of the o re. However, Mr. Chism was not exposed to any raw vermiculite. In fact , Grace's position is that the separating, processing, and expanding operations performed to convert the vermiculite ore to a finished expanded vermiculite remove any asbestos contamin ation except for small amounts of trace elements which occasionally ma y remain. Appellants have not come forward with evidence to refute Grace's evidence
on this poi nt and have not presented any evidence that even a trace of asbesto s contaminants actually remained in the finishe d product with which Mr. Chism worked.
III. Appell ants also appeal the District Court's determination that Grace did no t succeed to the liabilities of the Zonolite Company. I n Part II, supra , we concluded that
even a ssuming Grace is responsible for Mr. Chism's entire exposure to Zonolit e vermiculite, appellants have failed to establish a genuine issue of materia l fact regarding causation. Therefore, we need not reach this issue. 5 The judgment of the District Court is affirmed.-9-

A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.