U.S. District Court for the Middle District of North Carolina

Defendants Fisher Controls International LLC, Covil Corporation, and ViacomCBS Inc., successor-in-interest to Westinghouse Electric Corporation each have filed a motion for summary judgment. Additionally, the plaintiffs have filed for summary judgment against Daniel International Corporation.

By way of background, the plaintiffs allege that Mr. Kerry Vinson’s diagnosis of mesothelioma was because he was exposed to asbestos-containing materials, product and equipment through his 37-year career at Fiber Industries in Salisbury, North Carolina, and that this exposure resulted in his diagnosis and subsequent death.

The court noted that to prevail in an asbestos-related product liability action under North Carolina law, a plaintiff must establish that he was “actually exposed to the alleged offending products.” Moreover, the plaintiff must prove more than a casual or minimum contact with the product containing asbestos in order to hold the manufacturer of that product liable. As the present matter is in federal court on diversity grounds, the court noted that it is bound to apply the choice-of-law rules of the state which it sits. Therefore, North Carolina’s substantive law applies. The court noted that to support a reasonable inference of substantial causation from circumstantial evidence, a plaintiff must introduce “evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”

In the instant matter, the plaintiffs allege that each of the defendants manufactured sold, and or distributed asbestos-containing products or raw asbestos materials were present in Fiber Industries facilities over the course of Mr. Vinson’s employment. The defendants argue that even if these allegations were true, plaintiffs have not produced sufficient evidence that Mr. Vinson was actually exposed to the products at issue nor have plaintiffs demonstrated that any alleged exposure satisfied the Lohmann’s frequency, regularity, and proximity test.

First turning to defendant Fisher’s motion, the court granted this motion due to the fact that the plaintiffs were not able to show that Mr. Vinson had actual exposure to asbestos-containing products for which Fisher is responsible. The deposition testimony of Mr. Vinson made it clear that there were other options beyond asbestos-containing products for customers to purchase and that it was up to the users to decide what types of equipment they wanted to use. Even if the plaintiffs could demonstrate actual exposure, they fail to show that any such exposure happened with the “frequency, regularity, and proximity” required under Lohrmann.

Next, the court granted Covil’s motion for summary judgment. The plaintiffs allege that Mr. Vinson was exposed to asbestos-containing insulation that had been supplied to Fiber Industries by defendant Covil. The plaintiffs also allege that Covil employees directly installed and maintained the insulation and that this work likewise exposed Mr. Vinson to the product. Both parties agree that another defendant in this case, Daniel, performed maintenance and construction at the facility in question and that it ordered insulation from Covil to complete at least some of those projects. However, the parties dispute the degree to which Daniel relied on Covil products and, therefore, the degree to which placing Mr. Vinson in proximity to a Daniel employee at work would be equivalent to placing him in proximity to Covil insulation. After thoroughly reviewing the evidence presented, the court ruled that the plaintiffs failed to produce sufficient evidence from which a reasonable juror could find that Mr. Vinson was actually exposed to asbestos-containing insulation supplied, installed, or maintained by Covil or that he was exposed with the “frequency, regularity, and proximity” to meet the plaintiffs’ burden under Lohrmann.

Turning to Westinghouse’s motion, the plaintiffs allege that Mr. Vinson was exposed to asbestos in Westinghouse motors during his time as a maintenance mechanic and later in Westinghouse breaker boxes when he worked as an electrician. Defendant Westinghouse argues that the plaintiffs have made no attempt to prove that the Westinghouse electrical products at Fiber Industries were the type that contained asbestos, and if so, whether Mr. Vinson worked on those particular products. The plaintiffs rely on studies conducted by Westinghouse’s expert witness, Dr. William Longo, who tested whether some products produced by Westinghouse would have exposed asbestos dust upon routine maintenance. However, the court found that this reliance was misplaced. Dr. Longo merely tested “representative” Westinghouse breakers at a later date and did not attempt to demonstrate that the tested products were present at the Fiber Industries facility nor did he show that Mr. Vinson was in proximity to any of the products he studied. Therefore, the court ruled the plaintiffs fail to produce sufficient evidence from which a reasonable juror could find that Mr. Vinson was actually exposed to asbestos-containing products manufactured by Westinghouse or that he was exposed with the “frequency, regularity, and proximity” to meet the plaintiffs’ burden under Lohrmann.

Lastly, turning to the plaintiffs’ motion for summary judgment against Daniel. The court concluded that it is plausible that the Daniel insulation at issue did not contain asbestos and, even if it did, the plaintiffs may not be able to satisfy the frequency, regularity, and proximity test under Lohrmann with regards to Mr. Vinson’s mesothelioma. This creates a genuine dispute as to a material fact that is best left for a jury. Accordingly, the court denied summary judgment to the plaintiffs.