U.S. Court of Appeals for the Fourth Circuit, April 27, 2021
On June 11, 2017, Charles F. Connor (the decedent) died at the age of 90 of mesothelioma. Following his death, his son Darrell Connor (the appellant), individually and as executor of Mr. Connor’s estate, brought a wrongful death action. The appellant named 22 defendants and stated a plethora of causes of action arising under both federal and North Carolina law. All of the appellant’s claims boil down to one straightforward accusation: that the defendants wrongfully caused Mr. Connor to become exposed to asbestos and develop his fatal mesothelioma cancer.
This current appeal involves Covil Corporation (the appellee), a manufacturer and supplier of asbestos insulation. The appellant alleges that the decedent was exposed to the appellee’s asbestos products during his time as an employer at Fiber Industries, a polyester production company whose facility contained piping that was wrapped in Appellee-supplied asbestos. The district court granted summary judgment in favor of the appellee, finding, as a matter of law, which the appellant failed to demonstrate that Mr. Connor was sufficiently exposed to the appellee’s asbestos to create a genuine dispute regarding causation.
By way of background, before the decedent worked for Fiber Industries, the vast majority of his employment history was as a machinist mechanic for the Norfolk Southern Railway Company. The decedent worked at Norfolk Southern for 18 years, from 1943 to 1944 and 1946 to 1963. For at least seven of these years, Norfolk Southern’s trains were powered by steam engines. One of the decedent’s primary job responsibilities during this timeframe was performing maintenance on the steam engines, which required him to spend considerable amounts of time “either beside the engines or in a pit” directly underneath them. According to the decedent’s deposition testimony, Norfolk Southern’s steam engines had “boilers wrapped in asbestos that needed to be removed and replaced on a “daily basis.” Though it does not appear that the decedent worked with the steam engines asbestos insulation directly, the process of removing and replacing the insulation cause asbestos dust to collect in the places where Mr. Connor worked—i.e., next to the steam engines and in the pits beneath them.
After spending nearly two decades at Norfolk Southern, the decedent then worked in a management position at Fiber Industries from 1966 until his retirement in 1982. A considerable amount of piping ran through the Fiber Industries facility, particularly in the production plant. According to the testimony of several former employees of Fiber Industries and Daniel International, these pipes were wrapped in asbestos insulation that was routinely removed and replaced by Daniel International workers until at least 1975. Like the insulation maintenance process at Norfolk Southern, the process of Daniel International workers removing and replacing the asbestos insulation that cloaked the piping at the Fiber Industries production plant generated asbestos dust that collected on the floor and floated in the air. However, the decedent served as a supervisor in charge of employee training and development. In this role, his primary job responsibilities included supervising the “training operators that worked under him” and developing “lesson plans” that were used to train new employees. The decedent had an office in the facility’s “P building,” an office building located roughly 200 feet from the production plant. Notably, the decedent testified that there was no asbestos in the P building.
The appellant court noted that it must review the district’s court ruling de novo. In tort cases governed by North Carolina law, the plaintiff must prove that the defendant’s alleged misconduct was a substantial factor causing the plaintiff’s injury. Further, to survive summary judgment on the issue of substantial factor causation, the plaintiff must introduce evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. After a thorough analysis of the “frequency, regularity, and proximity test,” the court concluded that the appellant has not introduced any direct evidence that demonstrates that the decedent was exposed to the appellee’s asbestos insulation products. Thus, the court affirmed the district court’s ruling.