Morgan v. Bill Vann Company, Inc. et al

Filing 415

Order granting #276 MOTION for Summary Judgment filed by Mount Vernon Mills, Inc. Plaintiff's claims against Mount Vernon Mills, Inc. are dismissed with prejudice. The Clerk is directed to terminate Mount Vernon Mills, Inc. as a party defendant. Signed by Chief Judge William H. Steele on 8/30/2013. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
RONALD MELVIN MORGAN,
as Personal Representative for the Estate
of Rueben Morgan,

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Plaintiff,
v.
BILL VANN COMPANY, INC., et al.,
Defendants.

CIVIL ACTION 11-0535-WS-B

ORDER
This matter comes before the Court on defendant Mount Vernon Mills’ Motion for
Summary Judgment (doc. 276). The Motion has been briefed and is ripe for disposition.1
I.

Relevant Background.
This is an asbestos action pending against 11 defendants,2 alleging various state-law tort

claims and a wrongful death cause of action based on the alleged exposure of plaintiff’s
decedent, Rueben Morgan, to asbestos-containing products at various times and locations.
Morgan was diagnosed with malignant mesothelioma (a disease commonly linked to asbestos
exposure) in or about February 2011. (Doc. 199, at Exh. A.) He died on or about November 5,
2012, at the age of 79. (Doc. 206, at Exh. A.)

1

Mount Vernon requested oral argument on its Motion. The Local Rules authorize
such requests, but also provide that “the court may in its discretion rule on any motion without
oral argument.” LR 7.3. After careful review of the parties’ briefs and exhibits, the undersigned
finds that oral argument is unlikely to be beneficial in resolving the issues raised on summary
judgment. Accordingly, the request for oral argument is denied.
2

Initially, there were numerous other named defendants; however, the ranks of
defendants have dwindled as a result of settlements and voluntary dismissals. All 11 remaining
defendants have pending, ripe summary judgment motions that have been taken under
submission.

On May 4, 2011, less than three months after his diagnosis, Morgan initiated this
litigation against 42 named defendants (not including Mount Vernon). Morgan’s pleadings
alleged that he “was exposed to asbestos dust, asbestos particles, asbestos containing materials
and products that were produced, manufactured, specified for use, installed, distributed, sold
and/or placed into the stream of commerce by the producer and/or distributor Defendants during
his employment as a machinist, engine room worker, and mechanic,” as a result of which he was
“diagnosed with an asbestos related disease.” (Doc. 1, Exh. A-2, at 6.) On July 29, 2011,
Morgan amended his Complaint to add Mount Vernon as a defendant. (Doc. 4, Exh. B, at 1.)
Record facts concerning Morgan’s interactions with Mount Vernon and its products are
as follows:3 Morgan was employed as a multi-craft maintenance mechanic at a paper company
called MacMillan Bloedel from 1972 through 1974. (Morgan Dep. I, at 86.)4 This facility where
Morgan worked produced a brown liner board used in cardboard boxes. (Id. at 88.) In his
capacity as a mechanic, Morgan’s job duties were to maintain the paper machine and related
equipment. (Id. at 86.) MacMillan Bloedel’s paper machine utilized so-called “dryer felts,”
which Morgan characterized as an asbestos-containing product. (Id. at 87; Morgan Dep. III, at
186-87; Morgan Dep. IV, at 242.) In paper mill operations, a dryer felt “takes the sheet from the
press section of the paper machine and carries it through a section of heated metal rolls or drums,
and it dries – it dries the sheet.” (Morgan Dep. III, at 182.) Mount Vernon was one of several
3

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, plaintiff’s evidence
is taken as true and all justifiable inferences are drawn in his favor. Federal courts cannot weigh
credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707 F.3d
1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by one
side is of doubtful veracity, it is not proper to grant summary judgment on the basis of credibility
choices.”). Thus, the Court will “make no credibility determinations or choose between
conflicting testimony, but instead accept Plaintiff’s version of the facts drawing all justifiable
inferences in Plaintiff’s favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
4

Morgan’s deposition was taken multiple times in this case, including discovery
depositions taken on August 16, 2011 and August 25, 2011, and trial depositions taken on
September 2 and 8, 2011. For purposes of this Order, citations to Morgan’s August 16
deposition will take the form “Morgan Dep. I,” while citations to the August 25 deposition will
take the form “Morgan Dep. II,” those to the September 2 deposition will take the form “Morgan
Dep. III,” and those to the September 8 deposition will take the form “Morgan Dep. IV.”

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suppliers of dryer felts used at MacMillan Bloedel during the 1972-74 period. (Morgan Dep. I,
at 87-88, 195-96.) Although he was not involved in the purchase or installation of dryer felts at
MacMillan Bloedel, Morgan knew that some of the dryer felts were manufactured by Mount
Vernon because “the boxes that they come in … was nice white pine boxes. … And so they had
their names on them good and bold.” (Morgan Dep. III, at 184.) There was at least one other
supplier of dryer felts (Albany) used at MacMillan Bloedel during Morgan’s employment. (Id. at
183-84, 193-94; Morgan Dep. I, at 87-88.) Morgan testified that Albany and Mount Vernon
dryer felts were substantially similar in their usage and appearance. (Morgan Dep. III, at 187.)
Morgan separated from his employment at MacMillan Bloedel in 1974 or 1975. (Morgan
Dep. I, at 86, 197; Morgan Dep. III, at 189.) From 1978 through 1992, he worked at the
Alabama River Pulp paper mill; however, Morgan testified that the Alabama River Pulp facility
did not use dryer felts. (Morgan Dep. I, at 197-98.)5 Even under plaintiff’s version of the facts,
Morgan had, at most, a single instance of purported exposure to Mount Vernon dryer felts after
1974-75. In particular, sometime in the early 1980s, Morgan went back to the MacMillan
Bloedel facility “to get the dimensions and pattern to make a belt grinding attachment for
Alabama River Pulp’s roll grinder.” (Morgan Dep. III, at 192.) Morgan did not go to the dryer
section of the MacMillan Bloedel paper machine, but from his location in the roll grinding area,
he could feel a draft from the dryer section, such that he would have been exposed to any dust
emanating from that area. (Id. at 192-93.) Morgan spent no more than “a couple of days or so”
at MacMillan Bloedel on this assignment. (Morgan Dep. IV, at 246.)
The critical question for purposes of the subject summary judgment motion is whether
Mount Vernon dryer felts were in use at MacMillan Bloedel in the early 1980s when Morgan
briefly visited the facility on his belt grinder assignment. Morgan acknowledged that during his
5

Morgan also indicated that the only time he ever worked at a facility that had
dryer felts was his employment at MacMillan Bloedel. (Morgan Dep. I, at 105-06.) Morgan’s
testimony was clear that the only time he remembered ever seeing or being around Mount
Vernon dryer felts was at MacMillan Bloedel. (Morgan Dep. IV, at 122.) He also explained that
Alabama River Pulp “didn’t have dryer rolls and felts” but instead utilized a process through
which the sheet was air-dried on rollers. (Morgan Dep. III, at 183.) Certainly, no genuine issue
of material fact has been presented that the Alabama River Pulp plant where Morgan worked
from 1978 through 1992 used any Mount Vernon product that contained asbestos, or that
Morgan was ever exposed to Mount Vernon asbestos products at that location.

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return visit to MacMillan Bloedel, he was not even on the same floor of the paper mill as the
dryer section where dryer felts were used. (Morgan Dep. III, at 107-08, 189-90; Morgan Dep.
IV, at 243.) Thus, he never saw any dryer felts at MacMillan Bloedel in the 1980s. Moreover,
when asked point-blank whether he knew what kind of dryer felts were in the MacMillan
Bloedel mill when he came back, Morgan answered, “No.” (Morgan Dep. IV, at 122.) Later in
the deposition, Morgan testified that he did not believe that MacMillan Bloedel had modified its
suppliers of dryer felts between 1974 (when his employment at the plant terminated) and his oneor two-day visit to the plant in the 1980s. (Id. at 245.) As Morgan explained, “[I]f you’ve got
something working, you’d stay with that. … [F]rom that standpoint if you had a product that’s –
that’s working, doing you a good job, I don’t see where you’d change it.” (Id. at 244.) So
Morgan did not have any reason to believe that MacMillan Bloedel had discontinued use of
Mount Vernon dryer felts between the time of his departure from the company in 1974 and his
brief foray back into the plant in the early 1980s. But he did not know. Morgan’s
aforementioned testimony is the only record evidence on this point.
II.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. The party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual

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determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
III.

Analysis.
The central legal issue animating Mount Vernon’s Rule 56 Motion is whether Morgan’s

claims against it are time-barred by the applicable Alabama limitations period. See Ala. Code §
6-2-38(l) (“All actions for any injury to the person or rights of another not arising from contract
and not specifically enumerated in this section must be brought within two years.”).6
A.

Alabama Law Governing Accrual of Causes of Action in Toxic Tort Cases.

Historically, Alabama applied a “last exposure rule” governing commencement of the
limitations period for claims alleging personal injuries resulting from exposure to a harmful
substance, regardless of when those injuries were manifested. See Garrett v. Raytheon Co., 368
So.2d 516, 521 (Ala. 1979) (“[W]e hold that the statute of limitations … began to run when
plaintiff was last exposed to radiation and plaintiff’s ignorance of the tort or injury, there being
no fraudulent concealment, does not postpone the running of the statute until the tort or injury is
discovered.”).
6

Morgan’s death on November 25, 2012 and his personal representative’s prompt
amendment of the pleadings to add a wrongful death claim within the § 6-2-38 period do not
alter the timeliness analysis. To the contrary, Alabama law is clear that if Morgan’s personal
injury claims were untimely filed, then his personal representative cannot maintain a viable
wrongful death cause of action arising from those personal injuries. See Ala. Code § 6-5-410(a)
(“A personal representative may commence an action … for the wrongful act, omission, or
negligence … whereby the death of the testator or intestate was caused, provided the testator or
intestate could have commenced an action for the wrongful act, omission, or negligence if it
had not caused death.”) (emphasis added). Stated differently, if Morgan’s personal injury
claims against Mount Vernon for exposure to asbestos are time-barred, then so are the wrongful
death claims relating to those injuries. See, e.g., Henderson v. MeadWestvaco Corp., 23 So.3d
625, 630 (Ala. 2009) (affirming dismissal of asbestos-related wrongful death claim as timebarred under § 6-5-410(a), where decedent’s personal injury claims for asbestos exposure
accrued in 1972, such that at the time of his death, decedent could not have commenced an
action for defendant’s wrongful act, omission or negligence if it had not caused death); In re
Asbestos Products Liability Litigation (No. VI), 2011 WL 3273296, *3 (E.D. Pa. Apr. 15, 2011)
(similar). Simply put, Alabama law leaves no doubt that “if a decedent’s cause of action is timebarred at his or her death, then the decedent’s personal representative cannot bring a wrongful
death action.” Henderson, 23 So.3d at 630 (citations omitted). As such, the crucial issue in the
timeliness analysis is whether Morgan’s personal injury claims related to asbestos exposure are
timely. If they are not, then the later-filed wrongful death claim necessarily fails pursuant to § 65-410(a).

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Shortly after Garrett was decided, the Alabama legislature stepped in to modify the
accrual rule for asbestos actions, enacting the following provision: “A civil action for any injury
… resulting from exposure to asbestos, including asbestos-containing products, shall be deemed
to accrue on the first date the injured party, through reasonable diligence, should have reason to
discover the injury giving rise to such civil action.” Ala. Code § 6-2-30(b). This “discovery
rule” for accrual of personal injury claims in asbestos cases took effect on May 19, 1980. The
following year, the Alabama Supreme Court examined the retroactivity of § 6-2-30(b), and held
that if, before the effective date of that provision, “one year had elapsed between the date of
plaintiff’s exposure and the date on which plaintiff’s action was commenced, then that claim is
nevertheless barred by the statute of limitations.” Tyson v. Johns-Manville Sales Corp., 399
So.2d 263, 267 (Ala. 1981). Subject to that important caveat, the Tyson Court expressly upheld
§ 6-2-30(b)’s establishment of “a discovery rule for the accrual of asbestos injury actions in
Alabama.” Id. at 272.
In the three decades since Tyson was decided, Alabama courts have consistently hewed to
the principle that if a plaintiff’s last exposure to a defendant’s asbestos-containing product
predated May 19, 1979, then the resulting personal injury claims were time-barred before § 6-230(b) was ever enacted and cannot be revived by operation of that statute. See, e.g., Henderson
v. MeadWestvaco Corp., 23 So.3d 625, 630 (Ala. 2009) (following Tyson’s determination that
asbestos claims are time-barred if, as of May 19, 1980, one year had elapsed between the date of
exposure and date of commencement of suit); Johnson v. Garlock, Inc., 682 So.2d 25, 28 (Ala.
1996) (reaffirming principle that Ҥ 6-2-30 cannot apply retroactively to actions already barred
by the statute of limitations as interpreted and applied in Garrett”).7

7

This bright-line rule has been repeatedly acknowledged by MDL courts applying
Alabama law in asbestos cases. See, e.g., Holland v. Armstrong Int’l, Inc., 2012 WL 7761487,
*1 n.1 (E.D. Pa. Nov. 30, 2012) (“[T]he applicable Alabama statute of limitations bars claims
arising from asbestos exposure occurring prior to May 19, 1979. Therefore, these claims are[]
barred.”); Legg v. Armstrong Int’l, Inc., 2012 WL 7761488, *1 n.1 (E.D. Pa. Nov. 30, 2012)
(same); In re Asbestos, 2011 WL 3273296, at *3 (“Based on the tenets of Henderson and Tyson,
Mr. Corley’s claim of personal injury resulting from asbestos against the moving defendants …
would have accrued in 1973, on the date of his last exposure to asbestos in the U.S. Navy. Based
on the one-year statute of limitations applicable to personal injury claims in effect at the time of
accrual …, his claim was barred in 1974.”).

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The net result, then, is that Alabama has different rules for accrual of personal injury
actions relating to asbestos exposure, depending on whether the last exposure occurred prior to
May 19, 1979 (in which case the Garrett “last exposure rule” governs) or whether the last
exposure occurred thereafter (in which case the § 6-2-30(b) “discovery rule” applies).8 See In re
Asbestos Products Liability Litigation (No. VI), 2011 WL 3240827, *2 (E.D. Pa. July 29, 2011)
(“Under Alabama law, all claims for pre–1979 exposure to asbestos must be filed within one
year of the last date of exposure. For any exposure to asbestos after May 17, 1980, the claim
accrues upon discovery of an asbestos-related disease.”).
The Court now applies these well-settled principles of Alabama law to record facts
concerning Morgan’s exposure to asbestos-containing products manufactured by Mount Vernon.
B.

Plaintiff’s Claims Relating to Pre-1979 Exposure to Mount Vernon Products
are Time-Barred on Their Face.

Plaintiff has offered substantial evidence that Morgan was exposed to asbestos-containing
dryer felts manufactured by Mount Vernon from 1972 to 1974, when he was employed at the
MacMillan Bloedel facility. The problem is that, as the foregoing discussion demonstrates, any
claims relating to Morgan’s exposure to Mount Vernon’s asbestos-containing products during
that time period are time-barred by straightforward application of black-letter Alabama law, as
set forth in Tyson and its progeny. See, e.g., Henderson, 23 So.3d at 630 (“Tony Henderson’s
claim of personal injury resulting from exposure to asbestos would have accrued in 1972, on the
date of his last exposure to asbestos at CAPCO. Based on the one-year statute of limitations
applicable to personal injury claims at the time …, his claim was time-barred in 1973.”).
8

In 2008, the Alabama Supreme Court overruled Garrett and jettisoned the lastexposure rule in all toxic substance exposure cases (§ 6-2-30(b) having been confined on its face
to the asbestos context), in favor of a discovery rule under which “a cause of action accrues only
when there has occurred a manifest, present injury.” Griffin v. Unocal Corp., 990 So.2d 291,
293 (Ala. 2008) (citation omitted). Nonetheless, the Griffin Court declined to give its holding
broad retroactive effect, declaring instead that “the new accrual rule of toxic-substance-exposure
cases will be applied prospectively, except in this case, where it will apply retroactively.” Id.;
see also Jerkins v. Lincoln Elec. Co., 103 So.3d 1, 5 (Ala. 2011) (explaining that Griffin’s
holding “would apply prospectively only, that is, only to those persons whose last exposure to a
toxic substance, and first manifest injury resulting from that exposure, occurred within the twoyear period before this Court released its opinion in Griffin”). The non-retroactivity of the
Griffin rule means that it has no application to Morgan’s claims for pre-1979 exposure, which
accrued under the old Garrett rule decades before Griffin was decided.

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Under Alabama law, Morgan’s claims of personal injury resulting from exposure to
Mount Vernon-manufactured asbestos during his employment at MacMillan Bloedel would have
accrued in 1974, when he was last exposed to Mount Vernon products there. Based on the oneyear statute of limitations applicable at the time, Morgan’s claims for these 1972-74 exposures
would have become time-barred in 1975, some 36 years before he sued Mount Vernon. By
operation of Tyson, those time-barred claims were not revived, revitalized or resuscitated by the
Alabama legislature’s subsequent enactment of § 6-2-30(b). Plaintiff has offered no persuasive
argument or authority that might allow his claims for 1972-74 exposures at MacMillan Bloedel
to be deemed timely under Alabama law; therefore, Mount Vernon’s Motion for Summary
Judgment will be granted insofar as it relates to those pre-1979 events.9
C.

Plaintiff Has No Evidence of Post-1979 Exposure to Mount Vernon Products
from which a Rational Finder of Fact Might Infer Causation / Liability.

“Under Alabama law, when a plaintiff shows post-1979 exposure to asbestos, his or her
action does not ‘accrue’ until the individual knew or should have known of an asbestos-related
disease.” In re Asbestos, 2011 WL 3240827, at *3. To avail himself of this more lenient
discovery rule, the plaintiff must satisfy the condition precedent of showing post-1979 exposure
to the defendant’s products containing asbestos.10 Plaintiff has not done so. There is no
9

To be sure, plaintiff has filed a separate memorandum of law advocating that
“[t]he Alabama Supreme Court should revisit the holding in Griffin” and “call[ing] for a reexamination of Griffin and the ruling authorizing prospective-only application” of the discovery
rule for accrual of toxic tort claims. (Doc. 321, at 18, 21.) Of course, federal courts applying
Alabama law must adhere to the clear pronouncements of the Alabama Supreme Court, and do
not have the luxury of “revisiting” those holdings or interpreting Alabama law in a manner that
deviates from them. See, e.g., Pietri v. Florida Dep’t of Corrections, 641 F.3d 1276, 1284 (11th
Cir. 2011) (“A state supreme court’s interpretation of its law is binding on federal courts.”);
World Harvest Church, Inc. v. Guideone Mut. Ins. Co., 586 F.3d 950, 957 (11th Cir. 2009)
(“When we address issues of state law, like the ones in this case, we are bound by the decisions
of the state supreme court.”). The unbroken line of Alabama Supreme Court decisions running
from Tyson to Johnson to Griffin to Henderson to Jerkins leaves no doubt that, under Alabama
law, the last exposure rule continues to govern accrual of personal injury claims for asbestos
exposures predating May 19, 1979; therefore, this Court must follow that rule.
10

This proof requirement may be satisfied by circumstantial evidence. See, e.g.,
Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala. 1987) (affirming principle that
“circumstantial evidence may be used to prove identity” of the manufacturer of a defective
product).

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evidence that Mount Vernon-manufactured dryer felts (or other Mount Vernon asbestos
products) were in use at the Alabama River Pulp mill where Morgan worked from 1978 through
1992. Instead, plaintiff relies heavily on the single occasion in the early 1980s when Morgan
returned to the MacMillan Bloedel facility for a couple of days on assignment for Alabama River
Pulp. But Morgan admitted that he did not see any dryer felts during that visit, and indeed was
on a different floor of the paper mill from the dryer section. Morgan also conceded that he did
not know what brand or brands of dryer felts were in use at that time, instead offering what he
acknowledged was a guess that MacMillan Bloedel had continued using the same suppliers for
its dryer felts during the intervening decade (approximately) since Morgan had last worked there.
Morgan’s testimony on this point is fairly summarized by his reasoning, “if it ain’t broke, don’t
fix it.” (Morgan Dep. IV, at 244.) But if Morgan was not still employed at MacMillan Bloedel
(he was not), and if he had not been employed there in many years (he had not), then how would
he have any reason to know whether MacMillan Bloedel perceived the dryer felts used in its
sheet-drying process as “broke” or not? He would not. Morgan had no information as to
whether McMillan Bloedel was or was not satisfied with the performance of Mount Vernon’s
dryer felts in the post-1974 period. He had no information as to whether that company had
continued to use Mount Vernon’s dryer felts after 1974. He was simply speculating, with no
rational foundation in facts personally known to him.
The infirmity with plaintiff’s reliance on such testimony to oppose Mount Vernon’s
Motion for Summary Judgment and identify genuine issues of material fact for trial is glaring.
“Speculation does not create a genuine issue of fact; instead, it creates a false issue, the
demolition of which is a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419
F.3d 1169, 1181 (11th Cir. 2005) (citation omitted); see also Garczynski v. Bradshaw, 573 F.3d
1158, 1165 (11th Cir. 2009) (“A ‘mere scintilla’ of evidence is insufficient; the non-moving party
must produce substantial evidence in order to defeat a motion for summary judgment.”). Simply
put, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380, 127
S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted). This record, taken as a whole, could not
lead a rational trier of fact to find that Morgan was ever exposed to Mount Vernon asbestoscontaining products after May 19, 1979. In other words, no reasonable jury could conclude from
this evidence that Morgan’s illness and death were caused by asbestos exposure that (i) was
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attributable to Mount Vernon and (ii) occurred after the effective date of the discovery rule of
accrual fashioned by § 6-2-30(b).11 Accordingly, Mount Vernon is entitled to summary
judgment on grounds that the record lacks sufficient evidence of product identification /
causation within the applicable limitations period. See Lee v. Celotex Corp., 764 F.2d 1489,
1491 (11th Cir. 1985) (defendant entitled to summary judgment where “[t]he allegation that
plaintiff was exposed to defendant’s asbestos-containing product is not supported by reasonable
inferences arising from the undisputed facts, but is based on speculation and conjecture that
renders them mere guesses or possibilities”).
IV.

Conclusion.
For all of the foregoing reasons, the Court finds that there are no genuine issues of

material fact, and that movant is entitled to judgment as a matter of law. Defendant Mount
Vernon Mills’ Motion for Summary Judgment (doc. 276) is granted, and plaintiff’s claims
against that defendant are dismissed with prejudice. The Clerk of Court is directed to
terminate Mount Vernon Mills as a party defendant.
DONE and ORDERED this 30th day of August, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

11

To be sure, plaintiff may well have evidence that Morgan was exposed to
asbestos-containing products manufactured by other defendants after May 19, 1979. But
applicable law imposes on plaintiff the burden of proving exposure to each particular defendant’s
products, not just proving exposure to asbestos in general. See, e.g., Hoffman v. Allied Corp.,
912 F.2d 1379, 1383 (11th Cir. 1990) (“the issue is whether a reasonable jury could conclude in
this case by a preponderance of the evidence presented, that Mr. Hoffman was exposed to
Armstrong’s asbestos products, and that the exposure was a proximate cause of his injury”); Lee
v. Celotex Corp., 764 F.2d 1489, 1490 (11th Cir. 1985) (“The major factual issue at the summary
judgment stage in asbestos litigation is whether plaintiff was exposed to the products of the
defendant.”); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1483 (11th Cir.
1985) (“Reasons behind the requirement that plaintiffs prove exposure to a particular defendant’s
products in order to establish proximate cause are well-stated in cases refusing to impose marketshare or industry-wide liability upon asbestos manufacturers.”).

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