North Carolina District Court Grants Summary Judgment to Six Defendants on Causation Grounds

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The plaintiffs alleged that the decedent, James T. Whitehead, was diagnosed with mesothelioma as a result of his alleged exposures to asbestos from working with and around a myriad of products and equipment over the course of his career as a sheet metal and maintenance mechanic. Mr. Whitehead was not deposed prior to his death, so the plaintiffs intended to rely primarily on testimony from individuals who worked alongside him in order to identify the products and equipment to which he was allegedly exposed. The defendants, The Aurora Pump Company; Anchor Darling Valve Company; Fisher Controls International, LLC; The William Powell Company; Covil Corporation; and Viking Pump, Inc., all filed separate motions for summary judgment, arguing the plaintiff was unable to meet the threshold causation requirements for asbestos cases under North Carolina law, which follows the Lohrmann “frequency, regularity, and proximity” test.

As to defendant Aurora, the plaintiff alleged that Mr. Whitehead worked with Aurora asbestos-containing pumps, and gaskets, packing, and insulation associated with same, while working at the Schlitz/Stroh Brewery in Winston-Salem from 1972 to 1973 and again from 1983 to 1999. The plaintiff produced a sales records indicating that Aurora sold seals, packing rings, and gaskets to the brewery during the relevant time period. However, the plaintiff’s evidence did not identify whether those products contained asbestos. Rather, the only evidence produced by the plaintiff in this regard was testimony from two former co-workers of Mr. Whitehead who testified that they believed that the original gaskets and packing on Aurora pumps contained asbestos or “probably” had asbestos in them. The court held that this was insufficient. Additionally, even if the packing and gaskets did contain asbestos, the court found that the testimony provided by these co-workers did not support a finding that Mr. Whitehead was exposed to such products with the frequency, regularity, and proximity required under the Lohrmann test. While both co-workers testified that they observed Mr. Whitehead working on Aurora pumps, one conceded that he was not 100 percent certain, and the other was unable to testify as to the frequency with which Mr. Whitehead performed such work.

The plaintiff also alleged that Mr. Whitehead worked with Anchor and Fisher asbestos-containing valves, and associated gaskets, packing, and insulation while at the brewery. However, the only evidence submitted by the plaintiff with regard to these defendants was the testimony of one co-worker who testified that he was “pretty sure” there were some Anchor and Fisher valves at the brewery, but was unable to testify that he ever saw Mr. Whitehead working on same.

The plaintiff alleged that Mr. Whitehead also worked with Powell valves and their associated components at the brewery. While two of Mr. Whitehead’s co-workers testified to the presence of Powell valves at the brewery, the court held that evidence that a company’s asbestos-containing products were present at the plaintiff’s worksite along was not enough to overcome a motion for summary judgment. Additionally, when pressed, the co-workers were unable to testify as to how often they observed Mr. Whitehead performed any work on these valves.

With regard to Covil, the plaintiff alleged that Mr. Whitehead was exposed to asbestos insulation installed by Covil at Duke Energy Corporation’s Marshall Steam Plant while employed by Bahnson Service Company and American Business Service in the 1960s. However, there was no evidence placing Mr. Whitehead at this plant. While his Social Security records demonstrated that he was employed by Bahnson and American Business Service during the 1960s, there was no indication that he ever went to work at the Marshall Steam Plant facility.

Finally, with regard to Viking, the plaintiff produced sales records indicating that Viking products were delivered to several of Mr. Whitehead’s worksites. With regard to the Schlitz/Stroh Brewery, which was the focus of the plaintiff’s case, Mr. Whitehead’s co-workers testified that they recalled him performing overhauls on Viking pumps “several times,” but could not specify how many.

Given all of the above, the court concluded that the “Plaintiff had failed to introduce evidence of Mr. Whitehead’s exposure to asbestos-containing products attributable to the moving defendant ‘on a regular basis over some extended period of time in proximity to where [Mr. Whitehead] actually worked’—if at all.” As such, the plaintiff failed to establish causation as to the moving defendants, and all six were entitled to summary judgment.