Morgan v. Bill Vann Company, Inc. et al

Filing 423

Order granting #266 MOTION for Summary Judgment filed by CBS Corporation; denying #359 MOTION to Strike filed by CBS Corporation. Plaintiff's claims against CBS Corporation are dismissed with prejudice. The Clerk is directed to terminate CBS Corporation 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,
Plaintiff,
v.
BILL VANN COMPANY, INC., et al.,
Defendants.

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CIVIL ACTION 11-0535-WS-B

ORDER
This matter comes before the Court on defendant CBS Corporation’s Motion for
Summary Judgment (doc. 266). The Motion has been briefed and is ripe for disposition.1
1

Also pending is CBS Corporation’s Motion to Strike (doc. 359), in which movant
argues that certain evidence upon which plaintiff relies is speculative, hearsay, a response to
leading questions, or violates the rule of completeness. The Motion to Strike is denied in its
entirety. Taking these arguments in reverse order, CBS Corporation has misapplied Rule 106,
Fed.R.Evid. Contrary to movant’s position, a litigant need not submit an entire document as a
summary judgment exhibit. In fact, the Local Rules of this District Court are clear that “[i]f
discovery materials are germane to any motion or response, only the relevant portions of the
material shall be filed.” LR 5.5(c) (emphasis added). Plaintiff complied with this requirement.
If CBS Corporation believes that some other portion of an exhibit should be included, its remedy
is to file that portion as an exhibit to its own brief, not to move to strike the part that plaintiff
filed. As for movant’s request “to strike all testimony elicited in response to leading questions”
(doc. 359, ¶ 3), there is no absolute prohibition on use of such questions on direct examination.
The applicable rule is that “[l]eading questions should not be used on direct examination except
as necessary to develop the witness’s testimony.” Rule 611(c), Fed.R.Civ.P. Authority is legion
for the proposition that use of leading questions on direct examination may be permitted in the
trial court’s discretion. This ground for the Motion to Strike is misguided. As for CBS
Corporation’s hearsay and speculation objections, movant provides no explanation for why the
draconian step of striking this testimony from the record (rather than simply finding that it fails
to give rise to genuine issues of material fact on summary judgment) is an appropriate remedy.
Exhibits are not stricken (and motions to strike should not be filed in federal court) as a kneejerk
reaction whenever a litigant is unhappy with either the contents of an exhibit or the other side’s
arguments drawn from that exhibit. See, e.g., Zukowski v. Foss Maritime Co., 2013 WL
(Continued)

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.)
On May 4, 2011, less than three months after his diagnosis, Morgan initiated this
litigation against 42 named defendants (including CBS Corporation). 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 name certain additional defendants. (Doc. 4, Exh. B, at 1.)
CBS Corporation is named as a defendant in its capacity as successor in interest to
Westinghouse Electric Corporation. For purposes of this Order and to avoid confusion, that
defendant will be referenced herein as “Westinghouse.” Record facts concerning Morgan’s

1966001, *3 (S.D. Ala. May 10, 2013) (“Motions to strike are generally disfavored as time
wasters that distract the court from the merits of a party's claim.... To the extent that the parties
thought their opponent's exhibits warranted a challenge, a footnote or two in an opposition or
reply brief would have sufficed.”) (citations omitted); Essex Ins. Co. v. Foley, 827 F.Supp.2d
1326, 1327 n.1 (S.D. Ala. 2011) (explaining why it is disfavored and generally inappropriate to
strike arguments or other portions of filings simply because they lack merit, or “may suffer from
a logical or factual defect”) (citation omitted); Exhibit Icons, LLC v. XP Companies, LLC, 609
F.Supp.2d 1282, 1300 (S.D. Fla. 2009) (“Motions to strike, however, are generally disfavored by
the court,” and are a “drastic remedy to be resorted to only when required for the purposes of
justice”) (citations omitted).
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.

-2-

interactions with Westinghouse products are as follows:3 Morgan was assigned to the U.S. Coast
Guard weather cutter Mendota in the late 1950s and 1960s, working as a machinist in the
vessel’s engine room. (Morgan Dep. I, at 65-67.)4 The Mendota utilized a Westinghouse turbine
generator, which supplied power to a Westinghouse electric motor that was the vessel’s primary
source of propulsion. (Id. at 151-52.) The Westinghouse turbine was equipped with block and
woven insulation made of asbestos that produced dust to which Morgan was directly exposed in
close proximity on an ongoing basis. (Id. at 169-72; Morgan Dep. III, at 118-20.)
From 1965 through 1967, Morgan was employed as a machinist at a civilian shipyard in
Norfolk, Virginia. (Morgan Dep. I, at 78.) In this capacity, Morgan utilized a foul-smelling
tubing material called “Micarta” to machine bushings for the hinges of doors on landing ships.
(Id. at 181-82; Morgan Dep. III, at 114.)5 Morgan would bore holes through this material, which
created dust that he would then breathe for the duration of the one-hour project “to get the size
and finish that you wanted on each piece.” (Morgan Dep. III, at 115.) Morgan testified that, to
the best of his knowledge, the Micarta he used at the Norfolk shipyard contained asbestos. (Id. at

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.”
5

Micarta has been described in the record as “[j]ust the insulating material used in
electrical equipment.” (Ronald Melvin Morgan Dep., at 285.) It was also characterized as a
“generic term[] for insulating material.” (Id. at 347.) Morgan identified Micarta as a plastic
laminate with “[s]ome kind of fiber” in its substrate. (Morgan Dep. I, at 184-85.)

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116.) When asked why he believed that to be so, Morgan responded, “I think I was told that it
did. I don’t know.” (Id.)
The record documents no further involvement between Morgan and Westinghouse
products until the period of 1978 through 1992, when he worked at the Alabama River Pulp
paper mill as a multi-craft maintenance mechanic and foreman. (Morgan Dep. I, at 95-96.)
Morgan testified that he encountered Micarta in that job because “we machined a good bit of
micarta there for bus parts and stuff, insulation.” (Id. at 182.) At least once a year, the Alabama
River Pulp mill would have a major shutdown that lasted weeks, during which Morgan would
oversee workers machining, sawing, drilling and shaping the Micarta in accordance with the
electrical superintendent’s specifications. (Id. at 191-92; Morgan Dep. III, at 113.) When the
Micarta was cut, shaped and manipulated in this fashion, “it was blowing all over the place, the
smaller parts. And then we got to sweep it up and clean it up from the floor or whatever.”
(Morgan Dep. I, at 192.) Morgan would breathe in the resulting dust during this process.
(Morgan Dep. III, at 113-14.) As for the Micarta products used at Alabama River Pulp, Morgan
testified, “I believe they did” contain asbestos. (Id. at 117.)
Two critical, recurring factual issues in the Rule 56 briefing are whether the Micarta that
Morgan encountered contained asbestos, and whether it was a Westinghouse product. With
regard to the former inquiry, Morgan was asked pointblank if he knew whether any Micarta
products he had used actually contained asbestos. His response was, “As far as knowing, no.”
(Morgan Dep. I, at 188.) He also answered in the negative when asked if he could tell by
looking at a piece of Micarta whether or not it contained asbestos. (Id. at 188-89.) As for the
latter query, Morgan identified the Micarta as a Westinghouse product, but his testimony reveals
considerable doubt on this point. When asked, “how can you tell that what you were using was
manufactured by Westinghouse as opposed to any other competitor that made a plastic
laminate?” Morgan responded, “I couldn’t. They … just told me, and I think I seen the sign on it
that it was micarta and the people who gave me the job said it was.” (Morgan Dep. I, at 189-90.)
Plaintiff’s evidence is that Westinghouse has admitted in discovery responses in other litigation
that it sold Micarta and that its Micarta “at some point in time may have contained some amount
of asbestos,” with the caveat that “only certain variations of these products contained asbestos
during certain periods; many other variations contained no asbestos.” (Doc. 323-7, at 7-8.)

-4-

Aside from Micarta, Morgan associated Westinghouse with asbestos-containing
insulation on lower voltage controls at Alabama River Pulp. (Morgan Dep. IV, at 97-101.)
Morgan’s testimony was clear that he was not responsible for any low-voltage electrical products
housed in breaker boxes at Alabama River Pulp. (Id. at 102.) Nonetheless, he believed that the
insulation therein contained asbestos because it was “just common sense” given the product’s
application to “keep from having a fire there.” (Id. at 99.) There is no evidence that Morgan
ever worked with the insulation materials in those lower voltage controls or that he was in close
proximity to anyone else working with those materials. Indeed, Morgan acknowledged that he
did not recall ever seeing work done on internal parts of Alabama River Pulp’s electrical
distribution equipment manufactured by Westinghouse. (Id. at 110.) As for whether
Westinghouse manufactured the insulating material used in its switch gear, plaintiff’s son Ronald
Morgan (who also worked at Alabama River Pulp for a time) testified, “I don’t know. It could
be them, I don’t know. It could be some other supplier.” (Ronald Melvin Morgan Dep., at 16465.)
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.
Westinghouse’s Motion for Summary Judgment proceeds from the premise that Morgan

has no timely claims of sufficient exposure to Westinghouse’s asbestos-containing products to
support liability under Alabama law. In analyzing this contention, the Court considers the
following categories of evidence in turn: (i) evidence of Morgan’s exposure to Westinghouse
products during his employment in the Coast Guard and at the Norfolk shipyard (spanning
portions of the time frame from 1959 through 1967); (ii) evidence of Morgan’s exposure to
Micarta at Alabama River Pulp during the period of 1978 to 1992; and (iii) evidence of Morgan’s
exposure to Westinghouse low-voltage equipment at Alabama River Pulp during the same time
period.
A.

Morgan’s Exposure to Westinghouse Products from 1959 through 1967.

The parties’ summary judgment briefs devote considerable attention to discussing
evidence that Morgan encountered and worked directly with Westinghouse asbestos-containing
products when he was in the U.S. Coast Guard serving on the cutter Mendota in the late 1950s
and early 1960s, and when he worked as a machinist in the the Norfolk shipyard from 1965 to
1967. Under well-established, unambiguous Alabama law, however, any claims against
Westinghouse for such exposures 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

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 Westinghouse 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
(Continued)
-6-

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.”).
Shortly after Garrett was decided, the Alabama legislature stepped in to modify the
judge-made accrual rule in the asbestos context, 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. JohnsManville 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.

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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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
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
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.”).
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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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.”).
As the foregoing discussion demonstrates, any claims relating to Morgan’s exposure to
Westinghouse’s asbestos-containing products during the 1959 - 1967 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.”).
Under Alabama law, Morgan’s claims of personal injury resulting from exposure to
asbestos insulation on a Westinghouse turbine during his employment in the U.S. Coast Guard
would have accrued in 1962, when he last served on the Mendota. Likewise, his claims of
personal injury concerning exposure to Westinghouse asbestos products at the Norfolk shipyard
would have accrued in 1967, when he was last employed there. Based on the one-year statute of
limitations applicable at the time, Morgan’s claims for these exposures would have become timebarred in 1963 and 1968, respectively, more than 40 years before he sued Westinghouse. By
operation of the Tyson line of Alabama Supreme Court decisions, those time-barred claims were
not revived, revitalized or resuscitated by the Alabama legislature’s subsequent enactment of § 62-30(b). Plaintiff has offered no persuasive argument or authority that might allow these claims
for pre-1979 exposure to asbestos-containing products of Westinghouse to be deemed timely
under Alabama law; therefore, Westinghouse’s Motion for Summary Judgment will be granted
insofar as it relates to those pre-1979 events and exposures during Morgan’s employment in the
Coast Guard and at the Norfolk shipyard.9
9

To be sure, plaintiff’s response brief urges the Court to apply Griffin retroactively
(even though the Alabama Supreme Court has steadfastly declined to do so). Plaintiff also filed
a separate memorandum of law advocating that “[t]he Alabama Supreme Court should revisit the
holding in Griffin” and “call[ing] for a re-examination 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
(Continued)
-9-

B.

Morgan’s Exposure to Westinghouse Micarta at Alabama River Pulp.

“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 evidence of a post1979 exposure to the defendant’s products containing asbestos.10 Plaintiff attempts to meet this
requirement by identifying evidence that Morgan was present in close proximity to Alabama
River Pulp workers who machined, sawed, drilled and shaped Micarta for bus parts and
insulation during the period of 1979 to 1992. Plaintiff’s evidence is that this machining process
produced a great deal of dust, and that fans in the machine shop would blow the dust
everywhere, causing Morgan to breathe it of necessity in the course of supervising the work.
The trouble with this line of argument is that plaintiff points to no record evidence
supporting a reasonable inference that the Micarta he encountered at Alabama River Pulp

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. Nor does plaintiff materially advance his position by citing
Alabama authority for the proposition that an asbestos plaintiff “is entitled to recover all
damages which proximately flowed from his injury if his action is brought within the statutory
period of limitations.” Cazalas v. Johns-Manville Sales Corp., 435 So.2d 55, 57 (Ala. 1983).
The question presented on summary judgment is not whether plaintiff is entitled to damages for
asbestos exposures pre-dating May 1979, but is instead whether “his action is brought within the
statutory period of limitations” at all; therefore, Cazalas is inapposite. Without a post-1979
exposure to Westinghouse asbestos-containing products, plaintiff’s claims against this defendant
necessarily fail. What the measure of damages would be if plaintiff did have any timely claims
against Westinghouse is beyond the scope of the summary judgment analysis.
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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contained asbestos. Plaintiff’s summary judgment exhibits confirm Westinghouse’s statements
that “only certain variations of [Micarta] contained asbestos during certain periods; many other
variations contained no asbestos.” (Doc. 323-7, at 7.) Morgan conceded that he did not know
whether the Micarta used at Alabama River Pulp contained asbestos, and that he could not
discern from looking at a piece of Micarta whether it was made of asbestos. (Morgan Dep. I, at
188-89.) Morgan further acknowledged that he did not recall the grade of Micarta in use at
Alabama River Pulp. (Id. at 184.) Ronald Melvin Morgan testified that Micarta is simply a
“generic term[] for insulating material” that could be used interchangeably to describe “sheet
insulating materials … used in the mill for insulating,” and admitted “I don’t know” when asked
whether such materials contained asbestos. (Ronald Melvin Morgan Dep., at 347-48.)
To rebut this damaging evidence from Morgan, Ronald Morgan, and plaintiff’s own
exhibits, plaintiff explains that “Morgan believed that the micarta that he used contained asbestos
because of its application and because he was told that it contained asbestos.” (Doc. 323, at 20.)
The former point is unconvincing because Morgan simply assumed that asbestos would be a
good material for this application. (Morgan Dep. IV, at 108-09.) But that assumption lacked
factual grounding because (i) for Micarta to work properly in this bus parts/insulation context, “it
would have to have good electrical insulating quality,” but (ii) Morgan knew nothing about the
electrical insulating capability of asbestos. (Morgan Dep. I, at 185-86.) Also, Morgan admitted
that he had no knowledge of what substitutes might be used for asbestos in Micarta substrates for
these electrical applications. (Morgan Dep. IV, at 109-10.) So it is unreasonable for Morgan to
guess that the Micarta used in the electrical insulation application contained asbestos, when
asbestos by itself is a conductor rather than an insulator of electricity, and Morgan was unaware
of whether asbestos substitutes might perform this task as well as or better than asbestos.
Plaintiff’s latter argument (i.e., that the Micarta contained asbestos because Morgan “was
told that it contained asbestos”) is equally unavailing. Morgan’s testimony was vague,
imprecise, and uncertain, to-wit: “I think I was told that it did. I don’t know.” (Morgan Dep. III,
at 116.) The record sheds no light on who told Morgan that the Micarta contained asbestos, what
factual basis or personal knowledge that person might have had for such a statement, or whether
any witness who could testify to same might be available at trial. Because Morgan’s testimony
on this point is obviously hearsay that cannot be reduced to admissible form at trial, and because

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Westinghouse has properly objected on this ground pursuant to Rule 56(c)(2), Fed.R.Civ.P., it
cannot be considered on summary judgment.
Ultimately, then, the record construed in the light most favorable to plaintiff contains
nothing more than speculation that the Micarta machined at Alabama River Pulp for electrical
applications contained asbestos. Of course, speculation and conjecture are not valid grounds for
denying summary judgment relief. After all, “[s]peculation 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). Here, the record taken as a whole would not allow a rational factfinder to conclude
that the Micarta to which Morgan was exposed at Alabama River Pulp contained asbestos.11
For all of these reasons, plaintiff cannot rely on evidence of Morgan’s Micarta exposure
at Alabama River Pulp to overcome Westinghouse’s Motion for Summary Judgment.
C.

Morgan’s Exposure to Westinghouse Low Voltage Controls at Alabama River
Pulp.

In a final attempt to establish causation between Westinghouse asbestos-containing
products and Morgan’s injuries, plaintiff points to evidence that Westinghouse made the low
voltage controls used at Alabama River Pulp. However, the defects in proof as to this theory of
11

Even if plaintiff did have evidence that the Micarta to which Morgan was
exposed contained asbestos, this claim would still fail at the Rule 56 stage because of the paucity
of proof that Westinghouse manufactured this particular Micarta. After all, Morgan admitted
that he could not tell whether the Micarta he used was manufactured by Westinghouse or
someone else. (Morgan Dep. I, at 189-90.) And Ronald Melvin Morgan explained that Micarta
is simply a “generic term[] for insulating material” and that he had no knowledge “who the
manufacturer was” for the “sheet insulating materials” at Alabama River Pulp that he referred to
generically as Micarta. (Ronald Melvin Morgan Dep., at 347-48.) So even if the record
contained evidence raising a reasonable inference that the Micarta used at Alabama River Pulp
contained asbestos (which it does not), there would remain insuperable record deficiencies in
plaintiff’s speculation that the Micarta was manufactured by or otherwise legally attributable to
Westinghouse.

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liability are substantial and insurmountable on several levels. First, Morgan’s sole basis for
stating, “I think this material contains asbestos” was, in his words, “just common sense for …
trying to keep – keep from having a fire there. Asbestos is good for that.” (Morgan Dep. IV, at
98-100.) However, Morgan plainly was not testifying from personal knowledge. He never
explained the basis for his counterintuitive “common sense” assumption that asbestos (which
conducts electricity) would be a good product to insulate electrical controls. And Ronald Melvin
Morgan’s testimony on this point is no more favorable because he conceded lack of knowledge
as to whether the Westinghouse gear “did or did not have asbestos as a component of the
material.” (Ronald Melvin Morgan Dep., at 159.) What we have, then, is nothing more than
Morgan’s guess that these materials contained asbestos. That is not enough to withstand Rule 56
scrutiny.
Second, even if the Westinghouse electrical distribution equipment at Alabama River
Pulp did contain asbestos, Morgan’s testimony was that these low voltage electrical products
were not his personal responsibility, but were rather the responsibility of other crafts (i.e.,
electricians). (Morgan Dep. IV, at 102.) So there is no evidence that Morgan ever worked on
this Westinghouse gear in any manner that would have exposed him to respirable asbestos
fibers.12 Third, although electricians did work on this equipment, Morgan did not recall ever
seeing work being done on internal parts of Westinghouse electrical distribution equipment at
Alabama River Pulp. (Id. at 110.) Thus, Morgan was not even present when electricians may
have done work on this equipment that might have released asbestos dust (of which there is no
evidence), so he could not have been exposed to it any kind of reasonably close proximity.
12

In an effort to shore up this glaring weakness in the evidence, plaintiff relies on
Ronald Melvin Morgan’s testimony that Morgan “would just maybe go there [to the
Westinghouse electrical gear] to take dimensions to fabricate a part, [and] give it to the
electrician.” (Ronald Melvin Morgan Dep., at 184-85.) Even if this testimony is not speculative
(which it appears to be, given the “maybe” qualifier), it does not show exposure to asbestos dust
or fibers. By Morgan’s own testimony, any asbestos in that Westinghouse gear would “have to
be encapsulated inside … something that would be a nonconductor of electricity” in order to
function. (Morgan Dep. IV, at 101.) Plaintiff identifies no evidence that encapsulated asbestos
fibers pose any risk of harm to anyone, much less that asbestos in this electrical equipment was
ever out of this encapsulated state. Thus, nothing in the mere act of going to the electrical
equipment and taking dimensions to fabricate a part raises any reasonable inference from which
a rational finder of fact could conclude that Morgan was exposed to respirable asbestos from
Westinghouse low voltage controls and electrical distribution gear at Alabama River Pulp.
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In light of these multiple shortcomings of proof, plaintiff cannot overcome
Westinghouse’s summary judgment motion based on alleged exposure to asbestos in electrical
gear at Alabama River Pulp. See generally Sheffield v. Owens-Corning Fiberglass Corp., 595
So.2d 443, 457 (Ala. 1992) (affirming dismissal of plaintiffs’ claims for exposure to boilers
containing asbestos “rings,” where “the evidence fails to show how the plaintiffs could have
been exposed to airborne asbestos fibers released by the rings,” “[t]here was no evidence that any
of the Foster-Wheeler boilers were ever disassembled or assembled during the periods in which
the plaintiffs served aboard the vessels,” and “[t]here was no evidence that … plaintiffs had ever
seen or handled the rings or knew of their existence”).
IV.

Conclusion.
“Where 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 respirable asbestos from
Westinghouse 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
attributable to Westinghouse and (ii) occurred after the effective date of the discovery rule of
accrual fashioned by § 6-2-30(b).13 Accordingly, Westinghouse 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
13

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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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”); Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480, 1481 (11th Cir.
1985) (rejecting notion that plaintiff can show that he “was exposed to the asbestos in a
defendant’s products by simply showing that he worked at a job site at a time when the
defendant’s asbestos-containing products were used”).
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 CBS
Corporation’s Motion for Summary Judgment (doc. 266) is granted, and plaintiff’s claims
against that defendant are dismissed with prejudice. The Clerk of Court is directed to
terminate CBS Corporation as a party defendant. CBS Corporation’s Motion to Strike (doc.
359) is denied.
DONE and ORDERED this 30th day of August, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

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