United States District Court, M.D. North Carolina
DOROTHY E. SMITH, Individually and as Executrix of the Estate of JULIAN JACKSON SMITH, Plaintiff,
3M COMPANY, et al. Defendants.
MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, DISTRICT JUDGE.
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.
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 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
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” 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.)
STANDARD OF REVIEW
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)).
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).
Farmers Chemical's Motion for Summary
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.)
exercising diversity jurisdiction applies the substantive law
of the forum state.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)).
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.
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. (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. Finch, 2018 WL 3941978, at *4.
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'
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
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 ...