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Smith v. 3M Co.

United States District Court, M.D. North Carolina

March 11, 2019

DOROTHY E. SMITH, Individually and as Executrix of the Estate of JULIAN JACKSON SMITH, Plaintiff,
3M COMPANY, et al. Defendants.



         Plaintiff, individually and as executrix of the estate of Julian Jackson Smith, initiated this wrongful death action. (ECF Nos. 1, 278.) Before the Court are the following motions: (i) Defendant Farmers Chemical Association, Inc.'s (“Farmers Chemical”) Motion for Summary Judgment, (ECF No. 411); and (ii) Defendant Schlage Lock Company, LLC's (“Schlage”) Motion for Summary Judgment, (ECF No. 421). For the reasons set forth below, the Court will grant each motion.

         I. BACKGROUND

         Julian Jackson Smith (“Mr. Smith”) was diagnosed with mesothelioma in or about February, 2016 and died on December 13, 2017. (ECF No. 278 ¶¶ 2, 10; ECF No. 412-5 at 205.) The Complaint[1] alleges, in relevant part, that Mr. Smith “experienced occupational exposure to asbestos while working as a plumber and pipefitter from approximately 1965 to 1982 out of the Plumbers' and Pipefitters' Union Local 585 of Durham, North Carolina.” (ECF No. 278 ¶ 18(a).) According to the Complaint, Mr. Smith's exposures occurred “on the premises of various industrial facilities, including, but not limited to, those owned and/or controlled by” Farmers Chemical and Schlage. (Id.)

         The Complaint names a number of defendants, including Farmers Chemical and Schlage, against whom the following seven causes of action are alleged: (i) negligence; (ii) product liability-inadequate design or formulation; (iii) breach of implied warranty; (iv) negligence, negligent retention and supervision; (v) gross negligence; willful, wanton, and reckless conduct; (vi) false representation; and (vii) failure to warn. (Id. ¶¶ 21-106.) The Complaint also includes an eighth cause of action which alleges that the “Premise and Contractor Defendants”[2] were “negligent, grossly negligent and malicious, and committed certain intentional acts, all of which were the proximate cause of the disease and injuries resulting in mesothelioma from exposure to asbestos.” (Id. ¶¶ 18(a), 107-115.) In addition, the Complaint includes claims for loss of consortium, as well as compensatory and punitive damages. (Id. ¶¶ 116-120.) Farmers Chemical and Schlage each move for summary judgment as to all claims alleged by Plaintiff. (See ECF Nos. 411, 421.)


         Summary judgment is appropriate when “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 dispute is “genuine” if the evidence would permit a reasonable jury to find for the nonmoving party, and “[a] fact is material if it might affect the outcome” of the litigation. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal quotation marks omitted). The role of the court is not “to weigh the evidence and determine the truth of the matter” but rather “to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). When reviewing a motion for summary judgment, the court must view the evidence and “resolve all factual disputes and any competing, rational inferences in the light most favorable” to the nonmoving party. Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).

         In cases where the nonmovant will bear the burden of proof at trial, the party seeking summary judgment bears the initial burden of “pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party carries this burden, then the burden shifts to the nonmoving party to point out “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e) (emphasis omitted)). In so doing, “the nonmoving party must rely on more than conclusory allegations, mere speculation, the building of one inference upon another, or the mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). The nonmoving party must support its assertions by “citing to particular parts of the record, ” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 324. The judicial inquiry on summary judgment “thus scrutinizes the plaintiff's case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).


         A. Farmers Chemical's Motion for Summary Judgment

         Farmers Chemical argues that it “is entitled to summary judgment in this matter because it was not in control of the work site at the Farmers Chemical Plant in Tunis, North Carolina, where Mr. Smith claimed exposure to asbestos.” (ECF No. 412 at 11.) Rather, according to Farmers Chemical, during the period of Mr. Smith's alleged exposure on Farmers Chemical's premises, the jobsite was controlled by DM Weatherly Company (“DM Weatherly”), Plaintiff's employer and the company with which Farmers Chemical contracted to build the facility. (Id. at 11-12.) In response, Plaintiff “asserts that [Mr.] Smith's daily exposure to asbestos on the Farmers Chemical premises contributed to causing his mesothelioma.” (ECF No. 462 at 1.) Plaintiff further argues that “Farmers Chemical presents no evidence supporting any supposed relinquishment of control or possession of the premises to DM Weatherly or any other contractor.” (Id. at 14.)

         A court exercising diversity jurisdiction applies the substantive law of the forum state.[3]Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Scott v. Watsontown Trucking Co., 533 Fed.Appx. 259, 262 (4th Cir. 2013). Accordingly, in North Carolina, “[t]o state a prima facie negligence claim of premises liability, [the plaintiff] must show that [the defendant] had control over the area where [the decedent] worked. . . . In other words, ‘control is a prerequisite of liability.'” Finch v. BASF Catalysts LLC, No. 1:16-CV-1077, 2018 WL 3941978, at *4 (M.D. N.C. Aug. 16, 2018) (quoting Wilkerson v. Norfolk S. Ry. Co., 566 S.E.2d 104, 111 ( N.C. Ct. App. 2002)).

         In arguing that Farmers Chemical bears the burden of presenting evidence to show that it relinquished control or possession of the jobsite, (see ECF No. 462 at 11-18), Plaintiff misapprehends each party's burden at this juncture. Where, as in this case, the party moving for summary judgment carries its burden by arguing that an absence of evidence exists to establish a fact essential to the nonmovant's case, the burden of production then shifts to the nonmovant. See Cray Commc'ns, Inc. v. Novatel Comput. Sys., Inc., 33 F.3d 390, 394 (4th Cir. 1994) (concluding that a movant's argument that an absence of evidence exists as to the nonmovant's claim is sufficient to shift the burden of production to the nonmovant); Nat'l Ass'n of State Aviation Officials v. ACSYS, Inc., No. Civ. A. DKC2000-2236, 2001 WL 720637, at *2 (D. Md. June 23, 2001) (“Plaintiff's burden on summary judgment mirrors [her] burden at trial: [she] must come forward now to forecast admissible evidence sufficient to sustain [her] burden of proof.”). To carry this burden of production, a nonmovant asserting the existence of a genuine issue of material fact must support this assertion by “citing to particular parts of materials in the record.” Fed.R.Civ.P. 56(c)(1)(A). Thus, to survive summary judgment here, Plaintiff must show that the record contains sufficient facts for a reasonable juror to conclude that, during the time that Mr. Smith worked at the Farmers Chemical jobsite and the alleged exposure occurred, Farmers Chemical exercised sufficient control over the premises to subject it to liability for Mr. Smith's injury.

         The Court concludes that Plaintiff has failed to meet the burden of production required to survive summary judgment. Specifically, the evidence in this case shows that for approximately 18 months, beginning in or about 1969, Mr. Smith was employed by DM Weatherly as a pipefitter working on the original construction of a fertilizer plant for Farmers Chemical in Tunis, North Carolina.[4] (ECF No. 412-5 at 87, 91, 96; ECF No. 412-6 at 13, 52, 54; see also ECF No. 412-3 at 4-5.) DM Weatherly was the general contractor employed by Farmers Chemical to build its fertilizer plant. (ECF No. 412-6 at 13, 52, 53.) According to Mr. Smith, DM Weatherly employed approximately 150 to 200 employees “at various times” to erect a newly constructed facility. (Id. at 13, 53.) Mr. Smith further testified that while employed at the Farmers Chemical jobsite, he received all of his instructions, tools, and materials from DM Weatherly. (Id. at 53-55.) When asked whether he recalled “any communications with an employee of Farmers Chemical” during his time on the jobsite, Mr. Smith responded, “[n]ot that I know of.” (Id. at 54.) Plaintiff points to no evidence from which a reasonable jury could find that, after employing DM Weatherly to construct its fertilizer plant, Farmers Chemical or its employees retained control of the jobsite or the manner in which the facility was constructed. (See ECF No. 462.) “Because control is a legal prerequisite for premises liability, [Farmers Chemical] is entitled to summary judgment” on Plaintiff's eighth cause of action.[5] Finch, 2018 WL 3941978, at *4.

         Even assuming, however, that Plaintiff could point to specific evidence establishing Farmers Chemical's control over the jobsite, there is insufficient evidence in the record to establish actual exposure to asbestos-containing products for which Farmers Chemical is responsible. Under North Carolina law, a plaintiff bringing an action arising from asbestos exposure must forecast evidence showing actual exposure to the alleged offending products to survive summary judgment. Wilder v. Amatex Corp., 336 S.E.2d 66, 67-68 ( N.C. 1985). The Fourth Circuit has concluded that North Carolina law requires “the plaintiff in a personal injury asbestos case ‘[to] prove more than a casual or minimum contact with the product' containing asbestos in order to hold [the defendant] liable.” Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 & n.2 (4th Cir. 1995) (quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986)). Rather, a plaintiff in such a case must satisfy the “frequency, regularity and proximity” test, which requires the plaintiff to 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.” Lohrmann, 782 F.2d at 1162-63 (holding evidence of exposure to an asbestos-containing product “on ten to fifteen occasions of between one and eight hours duration” insufficient to hold the product's manufacturer liable); see also Pace v. Air & Liquid Sys. Corp., 642 Fed.Appx. 244, 247 (4th Cir. 2016) (terming the above-described test adopted in Lohrmann the “‘frequency, regularity, and proximity' test”).

         Mr. Smith testified that during the eighteen months he worked on construction at the Farmers Chemical jobsite, his pipefitting duties included running underground water lines, steam lines, and chemical lines. (ECF No. 412-5 at 88.) According to Mr. Smith, he was also responsible for running pipe lines to turbines installed in the facility, and although the turbines were insulated, he was unsure whether such insulation contained asbestos. (ECF No. 412-6 at 42-44.) Mr. Smith further testified that during the last seven or eight months of his tenure at the jobsite, there was a significant amount of daily insulation work, including the cutting of insulation, within his proximity at the jobsite. (ECF No. 412-5 at 89-91; ECF No. 412-6 at 55.) According to his testimony, the cutting of insulation “[o]ccasionally” created dust which he “[c]ould have” inhaled. (ECF No. 412-5 at 89-90.) This evidence is too vague and speculative to satisfy Plaintiff's burden of demonstrating that Mr. Smith was actually exposed to asbestos-containing products for which Farmers Chemical is responsible. See Hill v. Michelin N. Am., Inc., 252 F.3d 307, 315 n.3 (4th Cir. 2001) (holding “vague” deposition testimony “insufficient to create a genuine issue of material fact”). In addition, as articulated by the Fourth Circuit in Lohrmann, “the mere proof that the plaintiff and a certain asbestos product are at the [same location] at the same time, without more, does not prove exposure to that product.” Lohrmann, 782 F.2d at 1162.

         The Court concludes that the evidence here, construed in the light most favorable to Plaintiff, is insufficient to satisfy the frequency, regularity, and proximity test set forth in Lohrmann. Farmers ...

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