U.S. District Court for the Middle District of North Carolina, March 23, 2021
Plaintiff Kenneth McDaniel was employed by Duke Power as an operator at its Belews Creek power plant in North Carolina from 1974 to 2005. Deborah McDaniel was married to Mr. McDaniel. Mrs. McDaniel was diagnosed with lung cancer, which the plaintiffs argue was a result of exposure to asbestos through her husband’s contaminated work clothing.
Mr. McDaniel recalled that Duke Power’s employees typically removed the insulation, while Covil employees typically installed new insulation after repairs were completed. Mr. McDaniel also testified that occasionally “there were times when Covil had to remove” the insulation, but that he did not think insulation removal was in their job description. In those instances where Covil employees conducted insulation work, Mr. McDaniel testified that he was at times “as close as right directly under them and around 20 feet ” away. Mr. McDaniel testified that his supervisors at Duke Power instructed him to assist with insulation removal, by removing insulation that encased the turbine or the insulating blankets that were on the throttle valves.
Defendant Covil Corporation moved for summary judgment and also filed a motion in limine to exclude expert opinion testimony of Charles Ay. In his expert report, Mr. Ay opines that “Mr. McDaniel’s exposures included exposures to asbestos from the work performed by Covil Insulation contractors who cut, removed, and repaired insulating materials in a manner that did not contain the release of asbestos fibers. Mr. Ay also opines that “Mr. McDaniel was also directly exposed to asbestos -containing insulation during his job which was originally supplied and installed by Covil Insulating contractors” and that, “while insulating exposures throughout the facility would be fairly routine, Mr. McDaniel was also [exposed] to large quantities of asbestos fiber during maintenance shutdowns, which would include exposures to the insulating materials used on the Westinghouse turbines at the Belews Creek facility,” for which Covil “installed asbestos- containing insulation and cloth” and conducted maintenance.
Turning to the admissibility of Mr. Ay’s expert opinion, the court notes the defendant’s motion identifies specific opinions that it seeks to exclude namely Mr. Ay’s opinion that Mr. McDaniel was directly exposed to asbestos-containing insulation due to work performed and materials supplied by Covil at Belews Creek and that Mrs. McDaniel’s illness was the result of her take-home exposure. Therefore, the court found the plaintiff’s argument that it was unclear to know exactly what evidence the defendant is trying to preclude to be unavailing. This court found that Mr. Ay’s testimony regarding Mr. McDaniel’s exposure to asbestos for which the defendant was responsible should be excluded because it is not based on sufficient facts or data, see Fed. R. Evid. 702, and instead, was based on “subjective belief” and “unsupported speculation.”
First, the court found that witness testimony does not serve as a basis for Mr. Ay’s opinion that Mr. McDaniel was exposed to asbestos for which the defendant was responsible. Mr. Ay testified that he relied on the testimony of Mr. McDaniel and his co-worker, Mr. Tilley, to form his opinion. Although Mr. Ay says that he has the ability to recognize asbestos-containing insulation materials, Mr. Tilley and Mr. McDaniel’s testimony indicates that they do not, as neither witness identified any material with which they worked or were exposed as containing asbestos. Mr. Ay recognized that neither Mr. McDaniel nor Mr. Tilley testified that they were aware until the mid-1990s that some asbestos had previously been present in the Belews Creek plant. The court did not find that their limited description of the material, in which they described it as white and a dust, provides a sufficient basis for Mr. Ay to identify this material as asbestos to which the defendant was responsible.
The court further found that Mr. Ay’s testimony is best summarized by his own statement that Mr. McDaniel “had the opportunity to be exposed every day.” The opportunity to be exposed to asbestos is not the same, however, as actual exposure to asbestos by a specific contractor. Mr. Ay’s opinion is inadmissible under Daubert, which aims to prevent expert speculation. (Daubert, 509 U.S. at 590) Therefore, Mr. Ay’s expert testimony must be excluded.
Turning to the defendant’s motion for summary judgment, the court found there was no direct or circumstantial evidence on the record from which a reasonable jury could conclude that Mr. McDaniel was exposed with frequency, regularity, and proximity to asbestos for which the defendant was legally responsible. First, based on the undisputed evidence and while drawing all inferences in favor of the plaintiffs, this court finds that the calcium silicate products that the defendant supplied did not contain asbestos. In April 1972, Duke Power asked bidders for the heat insulation portion of the project, which included the defendant and three other bidders, to provide “an alternate bid on some of the insulation due to regulations added to the Occupational Safety and Hazards Act affecting the use of materials containing asbestos.”
Ultimately, after a careful analysis of all of the defendant’s arguments, the court granted the motion for summary judgment as well as the motion in limine to exclude expert opinion testimony of Charles Ay.