Category: North Carolina

Motion to Dismiss / North Carolina / Pleadings Challenge
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Court Partially Denies Talc Manufacturer’s Motion to Dismiss as to Plausible Gross Negligence and Punitive Damages Claims, but Grants Motion as to Speculative Conspiracy Claim

NORTH CAROLINA – The plaintiffs Everett VanHoy and Lucille VanHoy (plaintiffs) filed this personal-injury action against multiple defendants, including American International Industries (AII), alleging the plaintiff Everett VanHoy’s (Mr. VanHoy) mesothelioma was caused by his exposure to a variety of asbestos-containing products throughout his life. AII moved to dismiss, under Rule 12(b)(6), the plaintiffs’ complaint on the following bases: (i) failure to state a gross-negligence claim; (ii) the plaintiffs’ inability to recover punitive damages resulting from a failure prove AII acted with “fraud, malice, or …

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North Carolina / Summary Judgment
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Summary Judgment Denied With Respect to Valve and Pump Exposure

NORTH CAROLINA — The plaintiff, Wade Gore, was diagnosed with mesothelioma in May 2015 and filed suit a month later. He alleged asbestos exposure while working at a DuPont plant in Leland, North Carolina. Gore worked as an insulator, with pipes, pumps and valves from approximately 1975 to the 1980s. He was allegedly exposed to asbestos from gaskets, pumps, valves and packing. Numerous defendants filed motions for summary judgment based upon a purported lack of evidence of exposure.

With respect to defendant Powell, the court …

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North Carolina / Summary Judgment
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Insulation Supplier Denied Summary Judgement Based On Residual Market Place Arguments

NORTH CAROLINA — The plaintiff brought suit against a dozen entities alleging her decedent’s exposure in the tire curing room of the Firestone factory in Wilson, North Carolina from 1975 to 1995. The plaintiff alleged that Covil Corporation was the supplier of asbestos containing pipe covering that was used to insulate steam lines located throughout the curing room. Covil moved for summary dismissal arguing that there was insufficient evidence to conclude that it was the supplier of the asbestos containing pipe covering located in the …

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Appeal / Case Decisions / North Carolina
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Denial of Worker’s Compensation Benefits Affirmed Upon Plaintiff Failure to Meet Statutory Requirements

NORTH CAROLINA – The plaintiff Edmund Preslar filed for Workers’ Compensation Benefits claiming that he was entitled to compensation under the statute for his development of asbestosis attributed to his work at the Johns Manville Marchville facility from 1967-1968. The commission denied his claim stating that he had not worked long enough to be eligible for benefits under the statute. The plaintiff appealed and his representative was substituted after he passed away from a non-asbestos cause.

On appeal, the court noted the standard for commission …

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Case Decisions / Expert Challenges / North Carolina / Other Asbestos News
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Talc Defendant Strikes Plaintiff’s Expert and Avoids Spoliation Sanctions

NORTH CAROLINA — The plaintiff Ann Finch’s decedent Franklin Finch worked at a Firestone tire factory in Wilson, North Carolina from 1975-1995 and alleged that he was exposed to asbestos during his time there, causing his mesothelioma. Among other allegations of exposure, the plaintiff alleged that the decedent was exposed to talc-contaminated asbestos at Firestone, allegedly supplied by defendant Pfizer and others. In support of this allegation, the plaintiff offered an expert report from Sean Fitzgerald, who tested an identification badge worn by Decedent, and …

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Case Decisions / North Carolina / Pleadings Challenge
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Talcum Powder Defendant’s Motion to Dismiss Granted on Civil Conspiracy; Denied as to Punitive Damages

NORTH CAROLINA — American International Industries (AII) was sued by plaintiff Lloyd Bell. The plaintiff claimed his decedent had developed mesothelioma from her use of talcum powder during her work as a hairdresser and her education during beauty school. AII moved to dismiss the plaintiff’s claims for willful and wanton conduct, malice, conspiracy, and punitive damages. The court began its review with the standard for a motion to dismiss. According to the court, “a complaint must contain sufficient factual matter, accepted as true, to state …

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Case Decisions / Damages / North Carolina
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Expert and Fact Witness Evidence Establishes Last Day of Exposure for UPS Worker in Workers’ Compensation Commission Award

NORTH CAROLINA — The plaintiff filed an action under North Carolina Workers’ Compensation for alleged development of mesothelioma by her decedent. Mr. Penager worked as a driver for United Parcel Services (UPS) from approximately 1967-98. It was alleged by the plaintiff that Mr. Penegar drove tractor trailers each day and would walk through the mechanic shop after his shift where workers were using compressed air to clean out dust from brake jobs. The Commission found that the plaintiff’s last date of injury from asbestos occurred …

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Case Decisions / Discovery / North Carolina
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After Close of Discovery Motion for Release of Pathology Materials Granted

NORTH CAROLINA — Defendant John Crane filed a motion for an order governing the release of pathology materials following the close of discovery. Although pathology materials had been requested from the plaintiff’s counsel nearly a year and a half prior to the discovery end date, they were not produced until eight days after that deadline had passed. John Crane then learned that there were additional pathology materials in the possession of Duke University Hospital System (DHUS). John Crane requested the additional slides in April 2017, …

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Case Decisions / North Carolina / Summary Judgment
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Summary Judgment Granted Where Worker’s Compensation Act Bars Plaintiff’s Claims

NORTH CAROLINA — Plaintiffs filed suit against Alcatel Lucent, as successor in interest to Western Electric and Bell Labs (Alcatel), alleging Mr. Moore developed mesothelioma as a result of his work as a cable puller from 1965-95. Alcatel moved for summary judgment, arguing that the North Carolina Worker’s Compensation Act (Act) prohibited the plaintiffs’ claims. The plaintiffs opposed summary judgment and took the position that the exception laid down by the court in Woodson applied.

The court’s analysis began with the standard for summary judgment. …

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Case Decisions / Motion to Dismiss / North Carolina
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Loss of Consortium Claim Dismissed Where Wrongful Death Statute Controls

The plaintiff filed suit against multiple defendants, alleging her decedent developed mesothelioma as a result of exposure to asbestos containing products. Within the complaint, Ms. Stewart added a count for loss of consortium. The defendant moved to dismiss the loss of consortium count pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiff filed no response.

The court quickly analyzed its review of a case while sitting in diversity. The court noted that “if state substantive law has denied a plaintiff a remedy for his …

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