United States District Court, M.D. North Carolina
JONATHAN A. QUEEN, as Executor of the Estate of WILLIAM HAROLD QUEEN, Deceased, Plaintiffs,
CBS CORPORATION, et al., Defendants.
D. SCHROEDER, District Judge.
the court is the motion of Defendant Union Carbide
Corporation for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil Procedure. (Doc. 69.) Plaintiff has
not filed a response and has been warned that failure to
respond will result in a decision without hearing. (Doc. 77.)
For the reasons set forth below, the motion will be granted.
decedent, William Harold Queen, contracted mesothelioma
allegedly as a result of exposure to asbestos-containing
products, including during his employment as a laborer at
DuPont from 1964 until 1991. (Doc. 1 ¶ 13(a).) More
specifically, Plaintiff alleges that Queen would have been
exposed to asbestos both while working as a laborer and while
working around insulators who mixed, cut, and manipulated
pipe and equipment insulation. (Id.) Plaintiff
alleges negligence, product liability, breach of implied
warranty, willful and wanton conduct, failure to warn, and
conspiracy. (Id. ¶¶ 34, 42, 48, 55, 64,
two co-workers, offered for deposition in the case by
Plaintiff, both testified that they are unaware of any
asbestos exposure Queen had related to Union Carbide. (Doc.
70-2 at 3; Doc. 70-3 at 3.) There is no other evidence of any
exposure of Queen to asbestos manufactured, distributed, or
handled by Union Carbide. Based on this dearth of evidence,
Union Carbide contends it is entitled to summary judgment.
(Doc. 70 at 6.)
judgment is appropriate where 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). See Celotex Corp. v. Catrett,
477 U.S. 317, 322-23, 325 (1986). For the purposes of this
motion, the court draws all inferences in favor of Plaintiff
as the non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986).
Plaintiff has failed to respond to Union Carbide's motion
for summary judgment. Under the court's Local Rule
7.3(k), “[t]he failure to file a brief or response
within the time period specified in this rule shall
constitute a waiver of the right thereafter to file such
brief or response, except upon a showing of excusable
neglect.” Where there is such a failure, the rule
provides further that “the motion will be considered
and decided as an uncontested motion, and ordinarily will be
granted without further notice.” L.R. 7.3(k).
because even an unopposed dispositive motion must be
supported by the record, the court must satisfy itself that
the motion is warranted. See Robinson v. Wix Filtration
Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010)
(“[I]n considering a motion for summary judgment, the
district court ‘must review the motion, even
if unopposed, and determine from what it has before it
whether the moving party is entitled to summary judgment as a
matter of law.'” (quoting Custer v. Pan Am.
Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993)));
accord Gardendance, Inc. v. Woodstock Copperworks,
Ltd., 230 F.R.D. 438, 449 (M.D. N.C. 2005) (“As
with summary judgment motions, a court does not grant a
motion for dismissal merely because it is uncontested.
Rather, a district court should review a motion to dismiss on
its merits to determine whether the pleadings are
Carbide has shown that there is no genuine dispute of any
material fact and that it is entitled to judgment as a matter
claims rest on this court's diversity jurisdiction. (Doc.
1 ¶ 19.) Union Carbide argues that under North Carolina
and Fourth Circuit law, Plaintiff cannot show that exposure
to its product was a proximate cause of Queen's injury.
(Doc. 70 at 6.) In Lohrmann v. Pittsburgh Corning
Corp., 782 F.2d 1156, 1162 (4th Cir. 1986) (applying
Maryland law), the court held that a plaintiff must show that
his exposure to a defendant's product was a
“substantial factor” in causing the disease. The
court articulated this to mean that a plaintiff must present
“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.” Id.
at 1162-63. This is consistent with the requirements of North
Carolina law. See Jones v. Owens-Corning Fiberglas
Corp., 69 F.3d 712, 716 n.2 (4th Cir. 1995) (finding
Lohrmann consistent with North Carolina law, citing
North Carolina law).
axiomatic that in the absence of any demonstrated exposure, a
defendant's product cannot be a factor, much less a
substantial factor, in a plaintiff's disease. Because
Plaintiff here has not provided any evidence that Queen was
exposed to any Union Carbide asbestos-containing product,
Plaintiff's claims fail, and Union Carbide's motion
for summary judgment must be granted.
reasons stated, IT IS THEREFORE ORDERED that Defendant Union
Carbide's motion for summary judgment (Doc. 69) is
GRANTED, and the claims against ...