United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM ORDER AND OPINION
MARTIN REIDINGER, District Judge.
THIS MATTER is before the Court on the summary judgment motions filed by seven defendants to this proceeding, to wit: FMC Corporation on behalf of its former subsidiary, and originally sued as Crosby Valve, Inc. (herein "FMC/Crosby") [Doc. 407]; FMC Corporation on behalf of its former Peerless Pump business and originally sued as FMC Corporation, individually and as successor-in-interest to Peerless Pump Company (herein "FMC/Peerless") [Doc. 409]; Sterling Fluid Systems (USA), LLC., formerly known as Peerless Pump Co. (herein "Sterling") [Doc. 411]; Gardner Denver, Inc. (herein "Gardner") [Doc. 413]; Watts Water Technologies, Inc. sued as successor to Powers Regulatory Company, Inc. (herein "Watts") [Doc. 415]; Ingersoll Rand Company (herein "Ingersoll") [Doc. 417]; and Trane U.S. Inc., formerly known as American Standard Companies, sued individually and as successor-in-interest to American Radiator Company also known as Ideal Boiler (herein "Trane"). [Doc. 419].
Plaintiffs bring this diversity action asserting seven claims for relief in their Amended Complaint. [Doc. 199]. All of the claims center upon Plaintiff Ralph O'Neil Starnes having contracted mesothelioma from breathing asbestos dust. [Id. at 26]. Count One alleges negligence [Id. at 32-36], Count Two alleges breach of implied warranty [Id. at 36], Count Three alleges willful and wanton conduct [Id. at 37-38], Count Four alleges false representation [Id. at 38-39], Count Five alleges failure to warn [Id. at 39-42], and Counts Six and Seven assert claims against defendants other than those moving for summary judgment herein. [Id. at 42-47]. All of Plaintiffs' claims are brought pursuant to North Carolina law. [Id. at 32].
As stated, the seven defendants listed herein have each filed a motion for summary judgment. Plaintiffs have not responded to any of the defendants' motions. Six of the defendants - FMC/Crosby, FMC/Peerless, Sterling, Gardner, Ingersoll, and Trane - raise the same issue in their summary judgment motions. Defendant Watts raises an issue different from the other six defendants in its summary judgment motion. The Court, therefore, will discuss these two separate issues in turn.
The forecast of evidence, in the light most favorable to the plaintiffs, is as follows. Plaintiff Ralph O'Neil Starnes experienced occupational exposure to asbestos from 1956 through the 1980's while working as a control fitter for Powers Regulatory Company, Robert Shaw Controls Company, and Honeywell Company, all based in Charlotte, NC. As a control fitter, Mr. Starnes was exposed to asbestos fibers as he installed and repaired pneumatic controls for heating and cooling systems, which included working with and around asbestos-containing thermostats, control gauges, valves, regulators, and actuators manufactured and/or supplied by many of the defendants. [Doc. 199 at 27]. While working for the same three companies, Mr. Starnes repaired and installed compressors manufactured by some of the defendants, which also exposed him to asbestos packing, gaskets, and thermal insulation. [Id.].
As a part of his employ with the three companies, Mr. Starnes would be dispatched to other commercial and industrial sites, including those owned and controlled by some of the defendants, where he was exposed to asbestos thermal insulation while it was being cut, installed, and removed. [Id. at 27-8]. Further, at such sites, Mr. Starnes was also exposed to the mixing, applying, sanding, and cleaning-up of joint compounds, manufactured by various defendants, containing asbestos. Throughout his career at the various industrial and commercial sites, Mr. Starnes routinely worked in close proximity to pipefitters, drywallers, insulators, boilermakers, mechanics, millwrights, laborers and contractors. In working around these trades, Mr. Starnes was exposed to asbestos gaskets, packing, and thermal insulation. [Id. at 28].
STANDARD OF REVIEW
In reviewing a party's motion for summary judgment, this Court is mindful that summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A fact is "material" if it "might affect the outcome of the case." N&O Pub. Co. v. RDU Airport Auth. , 597 F.3d 570, 576 (4th Cir. 2010). A "genuine dispute" exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986).
A party asserting that a fact cannot be genuinely disputed must support its assertion with citations to the record. Fed.R.Civ.P. 56(c)(1). "Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact." Bouchat v. Baltimore Ravens Football Club, Inc. , 346 F.3d 514, 522 (4th Cir. 2003). If this showing is made, the burden then shifts to the non-moving party who must convince the Court that a triable issue exists. Id . Finally, in considering the motions for summary judgment filed by the defendants, the Court must view the pleadings and materials presented in the light most favorable to the plaintiffs, the non-movants, and must draw all reasonable inferences in plaintiffs' favor as well. Adams v. UNC Wilmington , 640 F.3d 550, 556 (4th Cir. 2011).
I. The Six Defendants' Motions for Summary Judgment.
Defendants FMC/Crosby, FMC/Peerless, Sterling, Gardner, Ingersoll, and Trane argue that they are entitled to summary judgment due to the absence of any evidence that Mr. Starnes was exposed to any of their products, and thus they are responsible for no action that proximately caused his mesothelioma. Representative of the defendants' basis for summary judgment is the following showing from defendant Gardner:
Plaintiff worked from approximately 1956-1980's as a control fitter installing and repairing pneumatic controls for heating and cooling systems at various industrial locations across North and South Carolina.... Plaintiff generally alleged that most of the defendants were manufacturers or suppliers of asbestos containing products which were used at Plaintiff's job ...