U.S. District Court for the Eastern District of North Carolina, Western Division
The plaintiff alleged that her daughter (the decedent) died from peritoneal mesothelioma, which she contracted after exposure to asbestos as a student in a ceramics technology course at Appalachian State University. The defendants moved for summary judgment, arguing the plaintiff failed to properly identify a product attributable to the defendants. In addition, if the plaintiff was able to establish product identification, the plaintiff failed to proffer evidence the decedent was exposed to the product with the requisite “frequency, regularity, and proximity” required pursuant to Lohrmann.
Under Fourth Circuit case law, a plaintiff can use circumstantial evidence to establish exposure to a specific product. Further, North Carolina courts have routinely applied the frequency, regularity, and proximity test pursuant to Lohrmann to evaluate proximate causation in asbestos cases, which provides that”there must be evidence of exposure to [that] specific product on a regularbasis over some extended period of time in proximity to where the plaintiff actually worked.”
The defendants argued that the material in question, NYTAL 100 HR talc, was not incorporated in any clay product purchased by ASU. However, the plaintiff pointed to testing from the decedent’s classmate’s apron that confirmed the presence of asbestos fibers, which the plaintiff’s expert opined matched the signature of the defendant’s NYTAL 100 HR talc. Recipe cards from the decedent’s professor also listed talc as an ingredient in glazes the professor mixed in a designated area of the studio. In addition, the owners of the clay manufacturing business could not rule out that the clay contained talc. Further, the description of the talc packaging used by the professor matched descriptions provided by the defendants. Finally, testing performed by the plaintiff’s expert “suggest[ed] that students could have been exposed to airborne asbestos fibers released during the mixing of glazes.” With all inferences drawn in the light most favorable to the plaintiff, the court held that “a reasonable jury could conclude that Defendants’ NYTAL 100 product was present in the ASU ceramics studio in 1995 and that [Decedent] was exposed to it by virtue of her participation in the class.”
However, the court also held that the evidence was insufficient to meet the Lohrmann test. Using testimony provided as to the length of the class, the court estimated the dcedent spent a maximum of 94 hours in the ceramic studio, or ten nine-and-a-half hour days. Further, there was no evidence to suggest the amount of the aforementioned class time that the professor actually used to mix the glazes. As such, the court reasoned that it was not reasonable to infer that the professor spent all of the aforementioned class time mixing the glazes. Therefore, the court held that “based on the extent of missing information, no reasonable jury could conclude from the evidence presented to this court that [Decedent] was exposed to NYTAL 100 with the necessary frequency, regularity, and proximity, such that it was the probable cause of her later development of mesothelioma.” Thus, the court granted the defendants’ motion for summary judgment.