Ernest E. Adams, Plaintiff-appellant, v. Johns-manville Sales Corporation, et al., Defendants-appellees, 752 F.2d 1004 (5th Cir. 1985)

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US Court of Appeals for the Fifth Circuit - 752 F.2d 1004 (5th Cir. 1985) Jan. 30, 1985

Jane Saginaw, Brent M. Rosenthal, Russell W. Budd, Dallas, Tex., for plaintiff-appellant.

Thomas W. Davenport, Jr., Monroe, La., for Eagle-Picher Industries.

George A. Weller, Beaumont, Tex., for Fibreboard Corp.

Dewey J. Smith, Monroe, La., for Celotex Corp.

Orgain, Bell & Tucker, John G. Tucker, Beaumont, Tex., for GAF.

Appeal from the United States District Court for the Western District of Louisiana; Tom Stagg, Chief Judge.

Before CLARK, Chief Judge, GARZA, and JOLLY, Circuit Judges.

ON PETITION FOR REHEARING

(Opinion of March 23, 1984, 727 F.2d 533)

PER CURIAM:


The recent decision in Jackson v. Johns-Manville Sales Corp., 750 F.2d 1314 at 1327-29 (5th Cir. 1985) requires us to recall Sections II and V of the original panel opinion in Adams v. Johns-Manville Sales Corp., 727 F.2d 533, 536-38, 540 (5th Cir. 1984). Those sections respectively addressed the availability of damages for Adam's alleged increased risk of cancer and for the mental anguish resulting from that risk.

Jackson instructs us to certify these two issues to the state supreme court in the absence of controlling state precedent. Louisiana, like Mississippi, has not defined the availability of such relief in the mass tort and latent disease context. Therefore, we certify these questions to the Louisiana Supreme Court, pursuant to Rule XII of the Louisiana Supreme Court Rules.

In accordance with our usual practice, we direct the parties to submit a joint statement of facts and stipulated questions to be certified to the Supreme Court of Louisiana. This is to be done promptly and the clerk of this court is directed to set an appropriate schedule and notify counsel. Upon receipt of the parties' response, we will transmit to the Supreme Court of Louisiana the formal certificate together with the record in this case and all briefs, including any memoranda or briefs that might be filed in conjunction with the joint factual statement and stipulated questions.

CERTIFIED.