Various Bits of Evidence Insufficient to Reverse Grant of Summary Judgment to Four Defendants

Various Bits of Evidence Insufficient to Reverse Grant of Summary Judgment to Four DefendantsU.S. Court of Appeals for the Fourth Circuit, March 30, 2016

After the decedent was diagnosed with mesothelioma, he and his wife filed suit against 31 companies alleging asbestos exposure. The case was removed to federal court and transferred to the Eastern District of Pennsylvania MDL. Four defendants — Crane Company, CBS Corporation (Westinghouse), Goulds Pumps, and Air & Liquid Systems Corporation (Buffalo) — were granted summary judgment by the Eastern District of Pennsylvania MDL, and the plaintiff appealed. The Fourth Circuit affirmed.

The decedent was a marine machinist at the Charleston Naval Shipyard from 1972-95, working primarily on pumps and valves. He spent one year as an apprentice in Shop 31, and spent the rest of his time working out of Shop 38, which involved working both in the shop and on board ships.

The defendants first argued the Fourth Circuit lacked jurisdiction because the orders granting summary judgment were entered by the Pennsylvania court. The Fourth Circuit disagreed; the plaintiff did not appeal until the final judgment was entered by the District Court for the District of South Carolina.

Next, the court applied South Carolina law to the plaintiff’s state-law tort claims, which consisted of the “frequency, regularity, and proximity” test. Regarding Crane, the plaintiff provided co-worker testimony stating that the decedent worked on Crane pumps. Despite this evidence, the plaintiff did not show that the decedent worked on Crane pumps containing asbestos, and the record was clear in that both asbestos and non-asbestos-containing gaskets, packing, and insulation were used. The only evidence offered by the plaintiff to show that Crane pumps contained asbestos were two advertisements. Regarding Westinghouse, while the plaintiff did show that the decedent worked with and around Westinghouse turbines in Shop 38, this work did not satisfy the frequency/regularity/proximity standard. While there was testimony stating that the removal of asbestos insulation from Westinghouse turbines on board ships created a fog of asbestos dust, this appeal only involved the decedent’s work in Shop 38.

Regarding Goulds, the plaintiff relied primarily on circumstantial evidence in attempting to establish exposure; however, finding that the decedent worked with asbestos-containing Goulds products would require sufficient speculation. Finally regarding Buffalo, the plaintiff offered testimony of a co-worker that Buffalo was one of the main manufacturers of pumps. Even construing this to mean that Buffalo pumps were present in the decedent’s work space in Shop 38, the plaintiff did not provide any evidence that the decedent worked on these pumps with frequency, regularity, and proximity.

The court stated: “In Lohrmann, this court declined to adopt the proposed rule that ‘if the plaintiff can present any evidence that a company’s asbestos-containing product was at the workplace while the plaintiff was at the workplace, a jury question has been established as to whether that product contributed as a proximate cause to the plaintiff’s disease.’” Summary judgment was affirmed.

Read the full decision here.