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From Products Liability Law Daily, December 12, 2018

Lack of causation evidence dooms asbestos-exposure suit

By Miriam A. Friedman, J.D.

The representative of a man who had died of mesothelioma after having worked in a facility constructed with asbestos-containing materials failed to introduce evidence of the decedent’s exposure to an asbestos-containing product for which an insulation supplier and the firm that had built the plant could be deemed liable, a North Carolina federal court determined. Ruling that the decedent’s representative had failed to establish causation, the court granted the builder’s and supplier’s motions for summary judgment and denied as moot their motions to exclude certain expert testimony (Connor v. Norfolk Southern Railway Co., December 11, 2018, Biggs, L.).

A man who had worked for over a decade at Fiber Industries a/k/a/ Hoechst Celanese (hereinafter "the facility") allegedly had come in contact with, or had been near others who worked with, asbestos-containing materials such as asbestos-containing pipe covering, gaskets, turbines, boilers, and other such materials used in the facility’s construction. The man developed mesothelioma and subsequently died, after which his representative initiated a wrongful-death action against the facility’s builder, Daniel International Corporation, as well as Covil Corporation, the company that had supplied insulation used in the facility’s construction. The representative’s complaint alleged causes of action for negligent failure to warn—defective design; breach of implied warranty; gross negligence—willful, wanton, and reckless conduct; failure to warn; and premises liability, negligence, gross negligence, and malice. The complaint also requested punitive damages. Both defendants moved for summary judgment on causation grounds.

Causation. Upon review of the record, the court found that the causation evidence submitted by the decedent’s representative was insufficient to support his claims against either the builder or the insulation supplier. Although the evidence established that the supplier had provided the asbestos-containing insulation that had been used at the facility, the court found insufficient evidence from which a jury could find that the decedent had been exposed to asbestos fibers from the at-issue insulation "on a frequent and regular basis in close proximity to where he worked." First of all, the office where the decedent had spent most of his time was in a separate building that was about 200 feet from the facility’s main production building. Although the decedent often had walked throughout the plant, no details were provided regarding his exposure to the asbestos-containing insulation, the court said.

Similarly, the court characterized the testimony of another employee as "simply too vague and speculative" to satisfy the burden of demonstrating that the decedent actually had been exposed to the asbestos insulation used by the builder’s employees in constructing the facility. Finally, neither the testimony of the decedent’s son nor the testimony of several of the builder’s employees had characterized the decedent as having been "routinely present" during the employees’ handling of the asbestos insulation. Therefore, the court concluded that the evidence was insufficient to support an inference that the alleged harm had been caused by asbestos insulation supplied by the defendant supplier. Using that same analysis, the court also concluded that the decedent’s representative had failed to demonstrate a genuine dispute as to the decedent’s asbestos exposure that was allegedly attributable to the builder.

The case is No. 1:17CV127.

Attorneys: Charles W. Branham, III (Dean Omar & Branham LLP) for Darrell A. Connor. Frank J. Gordon (Millberg Gordon Stewart PLLC) for Norfolk Southern Railway Co. William W. Silverman (Wall Templeton & Haldrup, P.A.) for Covil Corp. Moffatt G. McDonald (Haynsworth Sinkler Boyd, P.A.) for Daniel International Corp. f/k/a Daniel Construction Co., Inc.

Companies: Norfolk Southern Railway Co.; Covil Corp.; Daniel International Corp. f/k/a Daniel Construction Co., Inc.

MainStory: TopStory CausationNews EvidentiaryNews AsbestosNews NorthCarolinaNews

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