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South Carolina Federal Trial Court Grants Summary Judgment in Mesothelioma Case

KWhite Bio Webpage HS 10-7-13

A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.

A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.

In his thorough, well-written opinion, Judge Norton concluded that South Carolina law applied to the diversity action and that South Carolina had unequivocally adopted the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) “frequency, regularity and proximity test” for causation in asbestos cases.  The Plaintiff in Sparkman attempted to distinguish Lohrmann, arguing that the standard only applied to asbestosis cases. The Plaintiff urged the Court to follow the Seventh Circuit’s opinion in Tragarz v. Keene Corp., 980 F.2d 411 (7th Cir. 1992) and apply a lower “minor exposure” standard in mesothelioma cases.

Judge Norton rejected this argument, finding that the South Carolina Supreme Court opinion which actually adopted the Lohrmann standard, Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007), broadly dealt with “mesothelioma and other asbestos-related illnesses.” In other words, the law of South Carolina unequivocally requires a Plaintiff to satisfy the frequency, regularity, and proximity factors in order to establish causation in an asbestos case, regardless of the disease at issue.

The Court then considered whether the evidence satisfied the Lohrmann factors such that there was a genuine issue of material fact as to the allegations that a Foster Wheeler boiler caused the Plaintiff’s mesothelioma. The Court found that there were fatal holes in the proof. For example, while the Plaintiff was perhaps able to show that a Foster Wheeler boiler was in the vicinity of the Plaintiff at relevant times, the Plaintiff was unable to show that the Foster Wheeler boiler was responsible for exposing the Plaintiff to friable asbestos.

In the end, the Court concluded that the Plaintiff “fail[ed] to raise a genuine dispute as to whether [the decedent] was exposed to asbestos from a specific product manufactured by Foster Wheeler, much less on a frequent and regular basis.” Judge Norton’s opinion joins the list of courts which have refused to allow Plaintiff’s to recover against a defendant without evidence that the particular Defendant’s product caused the Plaintiff’s injuries. See Moeller v. Garlock Sealing Technologies, LLC, 660 F.3d 950, 954 (6th Cir. 2011) (holding that it was error not to grant JNOV after finding that the theory did “not establish that exposure to Garlock gaskets in and of itself was a substantial factor in causing Robert’s mesothelioma.”); Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 766, 774 (Tex. 2007) (rejecting the theory that “a person’s exposure to ‘some’ respirable fibers is sufficient to show that a product containing asbestos was a substantial factor in causing asbestosis.”); Smith v. Kelly-Moore Paint Co., Inc., 307 S.W.3d 829, 939 (Tex. App. – Fort Worth 2010, no pet.) (finding summary judgment proper where plaintiffs, relying on the theory as advanced by Dr. Maddox, failed to adduce sufficient evidence that Dorman had been exposed to chrysotile asbestos in Kelly–Moore’s drywall joint compounds in a dose sufficient to have been a substantial factor in causing his mesothelioma.”).

Although not stated explicitly therein, this opinion undermines the popular “any exposure” causation theory, which many courts have done recently. Pennsylvania courts have been perhaps the most critical of the theory. See Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) (describing the theory as a “fiction”). Another trial court has described the theory as “so convoluted and inherently contradictory so as to defy any comprehension.” September 24, 2008 Findings, Memorandum and Order of Judge Allan L. Tereshko, J., In Re: Abestos Litigation, Philadelphia, Pennsylvania; see also Gregg v. V-J Auto Parts, Co., 596 Pa. 274, 291, 943 A.2d 216, 226 (2007) (noting that “expert affidavits attesting that any exposure to asbestos, no matter how minimal, is a substantial contributing factor in asbestos disease . . . do not suffice to create a jury question in a case where exposure to the defendant’s product is de minim[i]s . . . “); Elliot v. Goodyear Tire & Rubber, Co., Order Sustaining Defendant’s Motion for Summary Judgment dated July 6, 2012 (finding that the theory “relies on certain assumptions, lacks an established factual foundation” and is based “ultimately in speculation and conjecture.”); Smith v. Ford Motor Co., No. 2:08-cv-630, 2013 WL 214378, *3 (D. Utah Jan. 18, 2013) (describing the theory as one in which the expert “rules all exposures ‘in’” in an attempt to “avoid not only the rules of evidence but more importantly the burden of proof”); Georgia-Pac. Corp. v. Stephens, 239 S.W.3d 304, 320-21 (Tex. App. 2007) (“The Stephenses’ experts failed to show, however, that the ‘any exposure’ theory is generally accepted in the scientific community—that any exposure to a product that contains asbestos results in a statistically significant increase in the risk of developing mesothelioma.”); Butler v. Union Carbide Co., 310 Ga. App. 21, 712 S.E.2d 537 (2011) (affirming grant of summary judgment after finding, inter alia, that “trial court’s conclusion that Dr. Maddox’s ‘no threshold’ theory was scientifically unreliable” was correct); In re Toxic Substances Cases, A.D. 03-319, 2006 WL 2404008 (Pa. Com. Pl. 2006) (“The fallacy of [Dr. Maddox’s] ‘extrapolation down’ argument is plainly illustrated by common sense and common experience. Large amounts of alcohol can intoxicate, larger amounts can kill; a very small amount,
however, can do neither.”).

All in all, these are good developments for asbestos defendants. Hopefully, the courts will continue the trend of requiring asbestos Plaintiffs to prove that a defendant’s product actually caused the Plaintiff’s injuries before a Plaintiff is permitted to recover against that defendant.

DRI – The Voice of the Defense BarStrictly Speaking Newsletter
April 10, 2015

Kyle J. White is an associate with Gallivan, White, & Boyd, PA in Greenville, South Carolina. He practices primarily in the fields of product liability and complex civil litigation, along with toxic tort, mass tort, and insurance subrogation. He currently writes for the award-winning Abnormal Use products liability blog (http://www.abnormaluse.com). He can be reached at kwhite@gwblawfirm.com.”