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Arbogast v. A.W. Chesterton Co.

United States District Court, D. Maryland

July 25, 2016

CHARLES LEMUEL ARBOGAST, JR., et al., Plaintiffs
v.
A.W. CHESTERTON CO. et al., Defendants

          MEMORANDUM

          James K. Bredar United States District Judge.

         The Court has previously ruled on certain motions in this personal injury case premised upon exposure to asbestos. The Court now addresses the following motions for summary judgment:

• ECF No. 444 - Eaton Corporation (“Cutler Hammer”)
• ECF No. 448 - Foster Wheeler Energy Corporation & Foster Wheeler LLC
• ECF No. 452 - MCIC, Incorporated
• ECF No. 461 - Georgia-Pacific LLC
• ECF No. 462 - Crane Company
• ECF No. 464 - Schneider Electric USA, Incorporated (“Square D”)
• ECF No. 466 - Crane Company
• ECF No. 467 - Union Carbide Corporation
• ECF No. 470 - Crane Company
No hearing is necessary. Local Rule 105.6 (D. Md. 2016).

         I. Standard for Summary Judgment

         “The court shall grant summary judgment 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing the motion, then a genuine dispute of material fact is presented and summary judgment should be denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere existence of a scintilla of evidence in support of the [opposing party’s] position” is insufficient to defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to be drawn from the underlying facts, must be viewed in the light most favorable to the opposing party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir. 2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial, Fed.R.Civ.P. 56(c)(1). Supporting and opposing affidavits are to be made on personal knowledge, contain such facts as would be admissible in evidence, and show affirmatively the competence of the affiant to testify to the matters stated in the affidavit. Fed.R.Civ.P. 56(c)(4).

         II. Analysis

         The Plaintiffs in this case are Charles Lemuel Arbogast, Jr. (“Arbogast”), and Barbara Arbogast. They sued over two dozen manufacturers and/or distributors/installers of products that allegedly contained asbestos, which allegedly was released into the air breathed by Arbogast and which allegedly caused his mesothelioma. Because the complaint was broad in its allegations of liability-with no allegations specifically directed at any particular product-the case turns on the evidence relating to specific products by specific manufacturers, or distributors or installers of specific products.

         Plaintiffs have proceeded on both negligence and strict liability theories against Defendants. Both theories include an element of causation. In Maryland, causation of injury in an asbestos exposure case is established if the actor’s conduct was a substantial factor in bringing about the claimed harm to the Plaintiffs. Eagle-Picher v. Balbos, 604 A.2d 445, 460 (Md. 1992).

In Balbos, the Maryland Court of Appeals adopted a “frequency, regularity, proximity” test in determining whether particular conduct qualifies as a substantial factor. Id. This determination involves the interrelationship between the use of a defendant’s product at the workplace and the activities of the plaintiff at the workplace. This requires an understanding of the physical characteristics of the workplace and of the relationship between the activities of the direct users of the product and the bystander plaintiff. Within that context, the factors to be evaluated include the nature of the product, the frequency of its use, the proximity, in distance and in time, of a plaintiff to the use of a product, and the regularity of the exposure of that plaintiff to the use of that product.

Id.

         The essential components of this causation test, as distilled from Maryland case law and case law from the Fourth Circuit, include the following: (1) the specific product, attributable to a specific defendant, contained asbestos; (2) the product was used in such a way that it released respirable asbestos fibers into the air breathed by the plaintiff; and (3) the plaintiff encountered the respirable asbestos fibers from a specific product with such frequency and regularity and in such proximity to the product that a factfinder may reasonably infer the specific product was a substantial factor in bringing about (4) the claimed physical injury. See Balbos, id. See also Reiter v. Pneumo Abex, LLC, 8 A.3d 725, 732 (Md. 2010) (plaintiffs must present evidence of exposure to specific product made or manufactured by defendant “‘on a regular basis, over some extended period of time, in proximity to where the [plaintiff] actually worked’” (quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986) (emphasis omitted))); Georgia-Pacific Corp. v. Pransky, 800 A.2d 722, 724-25 (Md. 2002) (“the plaintiff must have been in or very near the presence of the asbestos-containing product and able to inhale fibers released from that product”); Rotondo v. Keene Corp., 956 F.2d 436, 439 (3d Cir. 1992) (“a plaintiff must present evidence ‘to show that he inhaled asbestos fibers shed by the specific manufacturer’s product, ’” quoted in Balbos, 604 A.2d at 461).

         Besides proving causation, Plaintiffs bear the burden of proof on the other elements of a particular theory of liability. Thus, liability also must be premised either upon a failure to perform a duty in a negligence case, B.N. v. K.K., 538 A.2d 1175, 1178 (Md. 1988), or, in a strict liability case, upon a product defect that existed when the product left the defendant’s control, that renders the product unreasonably dangerous, and that was foreseeably present when encountered by the consumer, Phipps v. Gen. Motors Corp., 363 A.2d 955, 963 (1976). A product defect may include the failure to warn the consumer of the product’s dangerous nature. Owens-Illinois, Inc. v. Zenobia, 601 A.2d 633, 639 (Md. 1992). In asbestos cases, whether sounding in negligence or strict liability, a defendant may be liable for failure to perform this duty to warn users or bystanders of the danger of asbestos exposure. May v. Air & Liquid Sys. Corp., 129 A.3d 984, 1000 (Md. 2015).

         When considering a motion for summary judgment, if the Court finds a complete failure of proof on an essential element of a plaintiff’s case, then no genuine dispute of material fact exists, and the defendant is entitled to judgment as a matter of law. Catrett, 477 U.S. at 322-23. The Court now turns to each of the Defendants’ pending motions.

         A. Eaton Corporation (“Cutler Hammer”) (ECF No. 444)

         Eaton Corporation is the successor in interest to Cutler Hammer, Inc. Plaintiffs allege Arbogast was exposed to asbestos from Cutler Hammer products. According to Plaintiffs’ response in opposition to Cutler Hammer’s motion, Arbogast’s work as an electrician exposed him to Cutler Hammer lighting panels at Sparrows Point Shipyard from 1962 to 1963, Cutler Hammer motor controllers and arc chutes at the Mount Clare Shops for the B&O Railroad from 1963 to 1973, and Cutler Hammer grid resistors, controllers, and lighting circuit breakers at Curtis Bay Coal & Ore Piers (also part of B&O Railroad) starting in 1973. (Pls.’ Opp’n 4-8, ECF No. 501.) Notably, Plaintiffs have failed to narrow their allegations to specific products. Instead, they have referred to categories of products. More is required. Although the Court is not mandating Plaintiffs produce a specific product name and number (even though that would be helpful), they must at least provide a sufficiently specific description of a particular product in order for a Defendant to be able to search its records and locate whatever information it has on that product so that the Defendant can defend itself from Plaintiffs’ allegations, which as previously noted, were worded generally in the complaint. Mere reliance upon a brand name such as “Cutler Hammer” is insufficient.

         In addition, none of the evidence cited by Plaintiffs in their opposition provides more than a scintilla of evidence, if that, of the asbestos content of Cutler Hammer products. Arbogast testified in deposition that he could not recall whether any lighting panels he worked with at Sparrows Point contained asbestos. (Pls.’ Opp’n Ex. 3, Arbogast Dep. Apr. 1, 2015, 240:10-12, ECF No. 502.) He also testified he believed the arc chutes contained asbestos “[b]ecause of the high heat that they were protecting.” (Id. Ex. 4, Arbogast Dep. Apr. 2, 2015, 359:20-360:2.) Further, he testified he believed he was exposed to asbestos from “the wiring and stuff on the bridge resistors [at Curtis Bay] . . . [a]nd that particular wiring would get heated and turn like a whitish color and frayed sometimes.” (Id. 397:13-398:10.) Also, he believed Cutler Hammer lighting circuit breakers “did have maybe some asbestos properties in it, but I am not sure. . . . I mean, they were made out of, like, a Bakelite material. I am not sure if that was the Bakelite, the breakers itself. Later, I understood that Bakelite did have some asbestos properties in some of the Bakelite.” (Id. 553:21-554:9.) Finally, Plaintiffs extract the following statements from Cutler Hammer’s answers to interrogatories in a prior case:

... brand name and trade name of all products was “Cutler Hammer” and the types, descriptions, composition and dates are as follows: (1) arc shield/chute component-sold ... 1940 [to] ... the early 1980's. . . . The . . . composition is unknown but any asbestos material was believed to be chrysotile of unknown percentage ...., (2) ebony panel board component-sold ... late 1930's [to] ... early 1980's. . . . The ... composition is unknown but any asbestos was believed to be chrysotile of unknown percentage .... "

(Id. Ex. 61, Bartlett v. 20th Century Glove Corp. of Texas, No. 03-C-9600, 04-C-115, Cir. Ct. Kanawha Cty., W.Va., quoted in Pls.’ Opp’n 8.)

         Plaintiffs have failed to adduce any evidence to support Arbogast’s bare beliefs that he personally was exposed to asbestos emanating from any specific Cutler Hammer product. That some Cutler Hammer products may have had asbestos in them simply is not enough evidence to create a genuine dispute of material fact in the instant case. Consequently, Plaintiffs have failed to present evidence that would allow a jury to find they have carried their burden of proof on an essential element of their case against Cutler Hammer, and summary judgment shall be granted to this Defendant.

         B. Foster Wheeler Energy Corporation & Foster Wheeler LLC (“Foster Wheeler”) (ECF No. 448)

         In their opposition to Foster Wheeler’s motion for summary judgment, Plaintiffs contend that while he was employed at Sparrows Point Shipyard, Arbogast “was exposed to asbestos- containing internal components and external asbestos-containing thermal insulation necessary to meet the design requirements of [Foster Wheeler’s] marine boilers. . . . Foster Wheeler designed and manufactured marine boilers that, by necessity, contained asbestos components and required asbestos thermal insulation on the exterior. This was essential to the proper functioning of the Defendant’s boilers due to the high heat applications.” (Pls.’ Opp’n 3-4, ECF No. 498.) Plaintiffs have not cited to one shred of evidence to support these bold statements.

         Plaintiffs rely upon a recent Maryland Court of Appeals decision, May v. Air & Liquid Sys. Corp., 129 A.3d 984 (Md. 2015), for the proposition that Foster Wheeler owed a duty of care to Arbogast “even if the asbestos used in and around its boilers was manufactured by a third party.” (Pls.’ Opp’n 10.) For the moment, the Court will assume that asbestos manufactured by third parties was installed by third parties in or around the Foster Wheeler boilers, although the record is somewhat lacking on this point. Even so, while certainly expanding a potential basis for negligence and strict liability beyond the confines of prior Maryland law holding no duty existed if the defendant did not manufacture or supply the asbestos product, the May decision nevertheless carefully limited that potential liability to the circumstances present in that case:

This Court concludes that a manufacturer will have a duty to warn under negligence and strict liability when (1) its product contains asbestos components, and no safer material is available; (2) asbestos is a critical part of the pump sold by the manufacturer; (3) periodic maintenance involving handling asbestos gaskets and packing is required; and (4) the manufacturer knows or should know the risks from exposure to asbestos.

129 A.3d at 1000. Thus, the court recognized “that narrow circumstances exist where a manufacturer can be liable for products it has not touched.” Id.

         Plaintiffs have cited to no evidence showing that the Foster Wheeler marine boilers at issue here “contain[ed] asbestos components, and no safer material [was] available, ” that “asbestos [was] a critical part of the [marine boilers] sold by the manufacturer, ” or that “periodic maintenance involving handling asbestos gaskets and packing [was] required.” Assuming arguendo Plaintiffs could supply evidence on the fourth element of the May test, the Court cannot see any factual basis for applying the rest of that test to the instant case. The May court stressed that a third party’s asbestos must be crucial to the proper functioning of the original manufacturer’s equipment before liability may be imposed on that manufacturer for injury resulting from use of the third party’s asbestos in conjunction with the equipment. Id. at 992. With no evidence that the Foster Wheeler marine boilers required asbestos in order to ...


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