Summary Judgment Granted to Contractor Defendant in Take-Home Exposure Case

U.S. District Court for the Middle District of North Carolina, March 22, 2021

Plaintiff Kenneth McDaniel worked as an operator for Duke Power at its Belews Creek Power Plant in North Carolina from 1974 to 2005. His wife, Deborah McDaniel, whom he married in 1978, was diagnosed with lung cancer and filed suit, alleging that her disease was caused by her exposure to asbestos dust on her husband’s work clothing, which she laundered throughout their marriage. Defendant, Daniel International Corporation, a contractor, filed a motion for summary judgment, arguing that there was no evidence that it exposed Mr. McDaniel to asbestos. During his discovery deposition, Mr. McDaniel mentioned Daniel once, testifying that “I heard about Daniels being there [at Belews Creek].” In opposition to Daniel’s motion, the plaintiffs argued that Daniel contractors worked with asbestos insulation at Belews Creek, which produced dust that got onto Mr. McDaniel’s clothing and was subsequently brought home to his wife. Daniel did not dispute that it was contracted to perform insulation work at Belews Creek during a period of time when Mr. McDaniel was there.

Upon a review of the record, however, the court concluded that there was no evidence that Daniel exposed Mr. McDaniel to asbestos. First, the testimony of Mr. McDaniel and another fact witness in the case did not establish that Daniel employees were working in proximity of Mr. McDaniel. His testimony that he “heard about Daniels being” at the facility was not sufficient to establish that Daniel employees were in fact present or regularly worked in proximity to him; and the other fact witness failed to identify Daniel when discussing contractors present at the facility. Second, the court held that the contracts between Daniel and Belews Creek failed to establish Daniel’s liability. While there were contracts that purported to show that Daniel could perform services at the facility, the contracts themselves did not establish that such services were actually performed, and fell short of “evidence of exposure to a specific product on a regular basis over some extended period of time in proximate to where the plaintiff worked.”

Given this, the court found summary judgment to Daniel to be appropriate, holding that the plaintiffs’ arguments were “speculative” and the record was “devoid of evidence” from which a reasonably jury could conclude that Mr. McDaniel was present at the time that Daniel employees were installing, removing, or replacing asbestos insulation.

Read the full decision here.