Arbogast et al v. A.W. Chesterton Company et al

Filing 522

MEMORANDUM. Signed by Judge James K. Bredar on 6/6/2016. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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CHARLES LEMUEL ARBOGAST, JR.,
et al.,
Plaintiffs

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v.

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A.W. CHESTERTON CO. et al.,
Defendants
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CIVIL NO. JKB-14-4049

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MEMORANDUM
Pending before the Court are two motions by Defendant CBS Corporation of Delaware
(“Westinghouse”): one, a motion in limine to exclude the report, opinions, and testimony of
Plaintiffs’ expert as to asbestos exposure, R. Leonard Vance, Ph.D., J.D. PE, CIH (ECF
No. 393), and, two, a motion for summary judgment as to all of Plaintiffs’ claims against it (ECF
No. 442). The motions have been briefed (ECF Nos. 415, 423, 493, 511), and no hearing is
necessary, Local Rule 105.6 (D. Md. 2014). The motions will be granted.
I. Background
As earlier noted in other opinions in this case, Plaintiffs Charles Lemuel Arbogast, Jr.
(“Arbogast”), and Barbara Arbogast, sued a number of companies that allegedly manufactured
and/or distributed products containing asbestos to which Arbogast was exposed, thereby causing
his mesothelioma. Because the complaint is worded generically to apply to all Defendants and
their various products, the merit of Plaintiffs’ claims depends upon the evidence against specific
Defendants and their respective, specific products. Plaintiffs have offered Dr. Vance as an
expert in matters involving industrial hygiene and asbestos exposures. Dr. Vance’s written

opinion as to Westinghouse focused on two products: asbestos “socks” and Micarta. (Vance
Op. 10, Def. Westinghouse Mot. Lim. Ex. A, ECF No. 393-3.) Plaintiffs now concede that
Westinghouse has no liability for the asbestos “socks” (Pls.’ Opp’n 2, ECF No. 415);
consequently, the admissibility of Dr. Vance’s opinion will be considered only as to Micarta.
II. Analysis
A. Motion in Limine
Preliminarily, the Court excludes the “supplemental opinion” of Dr. Vance attached to
Plaintiffs’ response in opposition to Westinghouse’s motion in limine (id. Ex. 9, ECF No. 41510). Plaintiffs did not seek leave of court to make a supplemental disclosure so long after the
deadline for doing so expired under the scheduling order (ECF No. 89), and they have offered no
good cause to modify the scheduling order nunc pro tunc. See Fed. R. Civ. P. 16(b)(4) (“A
schedule may be modified only for good cause and with the judge’s consent.”). Hence, Dr.
Vance’s opinion as to asbestos exposure emanating from Micarta will be analyzed only in
relation to his original, timely disclosure.
Westinghouse argues that Dr. Vance’s opinion as to Micarta “is grounded in neither
sufficient facts nor data, is not the product of reliable principles and methods, and contains
nothing that would assist the trier of fact.” (Def. Westinghouse Mot. Lim. 1.) Having reviewed
the record and the governing authorities, the Court concludes Westinghouse’s argument is
meritorious.
Federal Rule of Evidence 702 provides,
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
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(d) the expert has reliably applied the principles and methods to the facts
of the case.
Dr. Vance’s opinion as to Micarta suffers from the same lack of factual underpinning as
did his opinion with regard to General Electric Company’s electrical wire. (See Mem. Op. 9,
May 18, 2016, ECF No. 516.) Dr. Vance opined as follows:
Mr. Arbogast produced electrical panel boards from asbestos containing Bakelite
and Micarta panel board. The drilling and sawing required in performing this
work produced dust to which he was exposed. The use of “blow down” as a
cleaning practice when this work was performed exacerbated Mr. Arbogast’s
exposures. He described this work23:
Q And what, if any, dust was created when you fabricated the industrial
Micarta product at the Curtis Bay yard?
A Yes, sir, there was dust created when I -- I cut the Micarta and the
Bakelite. It was dust when I -- when I had to drill it. It was dust in the
area when I was doing this, and also I had to clean up the benches, and we
even had to sweep in the shop too.
Q And -- and did you breathe that dust?
A Yes, sir. We had to blow -- blow it out sometimes with some air just to
clean up the residue that was there.
He testified24 the Bakelite and Micarta products did not have warning labels on
them.
(Vance Op. 10 (emphasis added).) According to Dr. Vance’s citations in endnotes 23 and 24, his
opinion relies upon Arbogast’s deposition testimony on April 8, 2015, pages 205-06 and 212-13.
The Court has reviewed the cited pages, but finds no evidence therein to support Dr. Vance’s
statement that “Mr. Arbogast produced electrical panel boards from asbestos containing
Bakelite and Micarta panel board.” Arbogast’s testimony in the April 7, 2015, deposition is
inconclusive, at best, on the alleged asbestos content of Micarta:
Q
And I think you said that you didn’t know it at the time, but now
you have information that you believe some Micarta contained asbestos: is that
correct?
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A

Yes.

Q

And how did you come to that information?

A
Just talking in the shop, you know, later on when we found out that
it had the fibers and stuff. And that’s—from talk in the shop, yes.
Q

And do you remember who in the shop told you that?

A

No, ma’am, I don’t.

(Arbogast Dep. Apr. 7, 2015, 599:17—600:9, Pls.’ Opp’n Ex. 3, ECF No. 415-4.)
The uncertain nature of Arbogast’s belief was evident when Westinghouse’s counsel
questioned him about the specific grade of Micarta that Westinghouse recommended for the
particular use about which Arbogast testified. He agreed that he was using it to fabricate arc
chutes, corresponding to a recommended use for Micarta grade 259-2, which, according to
Westinghouse’s documents, was composed of fiberglass cloth and a resin called Melamine. (Id.
601:8—602:17; see also “Westinghouse Micarta Industrial Products,” pp. 11-12, Pls.’ Opp’n
Ex. 10, ECF No. 415-11.)
Thus, not only does the evidence not support Dr. Vance’s conclusion that Arbogast was
working with asbestos-containing Micarta, but it also flatly contradicts that conclusion.
Plaintiffs have provided nothing to refute this evidence. Moreover, Dr. Vance acknowledged
that some grades of Micarta contained asbestos and some did not, and that he himself could not
recognize whether a material was Micarta or some other product; further, he indicated he used
the term “Micarta” as a generic term of art, not referring to a specific manufacturer’s product.
(Vance Dep. 139:3-25; 146:13—147:10; 150:2—151:6, Sept. 25, 2015, Def. Westinghouse’s
Mot. Lim. Ex. B, ECF No. 393-4.) In addition, he could not opine to a reasonable degree of
scientific certainty that Arbogast ever encountered a grade of Micarta that contained asbestos.

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(Id. 147:2-10.) Consequently, the Court concludes his opinion rests only upon an unwarranted
assumption rather than “sufficient facts or data,” as required by the Federal Rules of Evidence,
Rule 702(b). Accordingly, Dr. Vance’s opinion that Arbogast was exposed to asbestos by
working with Micarta is excluded from the case.
B. Motion for Summary Judgment
1.

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).

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2. Analysis
As the Supreme Court has stated,
the plain language of Rule 56(c) mandates the entry of summary judgment, after
adequate time for discovery and upon motion, against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party's
case, and on which that party will bear the burden of proof at trial. In such a
situation, there can be “no genuine issue as to any material fact,” since a complete
failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial. The moving party is “entitled to a
judgment as a matter of law” because the nonmoving party has failed to make a
sufficient showing on an essential element of her case with respect to which she
has the burden of proof.
Catrett, 477 U.S. at 322-23.
In applying this principle, the Court turns to the essential elements of Plaintiffs’ claim. In
Maryland, liability 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. Here, Plaintiffs contend
Arbogast was harmed by exposure to asbestos emanating from Westinghouse’s product called
Micarta. It is, therefore, essential that Plaintiffs produce evidence that the specific product,
which Arbogast says he encountered, contained asbestos. See 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 Eagle-Picher v. Balbos, 604
A.2d 445, 461 (Md. 1992). 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 asbestoscontaining product and able to inhale fibers released from that product” (emphasis added)).
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An essential element of Plaintiffs’ case is the asbestos content of the Micarta product or
products with which Arbogast says he worked. But based upon the Court’s review of the
materials submitted by the parties, it becomes clear that a fatal flaw in Plaintiffs’ case is their
inability to provide any evidence that the specific Micarta product encountered by Arbogast in
his work actually contained asbestos, and the Court cannot merely assume it did.
The Court notes the uncontradicted evidence produced by Westinghouse that, over the
course of the twentieth century, Westinghouse produced Micarta in numerous grades, only a few
of which contained asbestos. (Def. Westinghouse’s Reply, Ex. B, Ans. Interrog. at 25 in In re.
Complex Asbestos Litig., Cal. Sup. Ct. San Francisco City & Cty. No. 828684.) The different
grades had varying compositions. All of the grades apparently had some sort of fibrous element.
According to Westinghouse’s documentation, the fibrous element could be supplied by paper,
cloth, asbestos, or fiberglass. (Def. Westinghouse’s Mot. Summ. J., Ex. I, “Grade Selection
Guide.”) Because only a handful of Micarta grades ever contained asbestos—meaning the
majority of grades did not—it is necessary for Plaintiffs to have evidence that Arbogast
encountered one of the asbestos-containing grades of Micarta. Simply labeling something as
“Micarta” is insufficient. Although the evidence is not conclusive, the Court will assume that
Arbogast worked with and around a grade, or perhaps more than one grade, of Micarta. But the
Court cannot assume Arbogast worked in proximity to an asbestos-containing grade of Micarta.
One of the bits of evidence upon which Plaintiffs rely is that he worked with “industrial
Micarta.” (Pls.’ Opp’n 6.”) However, they produce no evidence that attaches any significance to
“industrial Micarta” in terms of whether or not it contained asbestos. They also point to his
April 8, 2015, deposition testimony when he was asked to describe the material he used to
fabricate a backing board for an electrical panel box: “That one, as I recall, would be, like, a

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piece of half-inch Micarta if we used that on that -- what I was -- whatever I was told to use,
that’s what we used. And it was a brownish color. It looked like it had some fibers on it.” (Pls.’
Opp’n Ex. 1, ECF No. 502-1, 148:19—149:2.) Thus, Plaintiffs rely upon Arbogast’s bare,
unsubstantiated belief that the fibers he was seeing in what he called Micarta were, in fact,
asbestos fibers. (See also id. Ex. 3, Arbogast Dep. Apr. 1, 2015, 87:3-4, ECF No. 502-3.) As far
as the Court is aware, Plaintiffs have produced no evidence of Arbogast’s ability to identify
fibers in any product as asbestos or nonasbestos. Whether a product had “visible fibers” (Pls.’
Opp’n 15) means nothing since every grade of Micarta had some sort of fiber in it. Neither
Arbogast nor a former coworker who was deposed ever performed any test on any Micarta
product they claimed to have used to determine whether its composition included asbestos. (Def.
Westinghouse’s Reply, Ex. C, Burnham Dep. July 15, 2015, 149:16—150:1; Ex. D, Arbogast
Dep. Apr. 15, 2015, 388:15-20.) These two individuals also testified that some fellow union
members told them that Micarta may have contained asbestos. (Burnham Dep. 146:--149:15;
Arbogast Dep. Apr. 15, 2015, 389:1-9.) But that hearsay certainly cannot be considered proof of
any asbestos content of the particular grade or grades of Micarta that Arbogast may have
encountered in his employment.
Because of the failure of proof on an essential element of Plaintiffs’ case, Westinghouse
is entitled to summary judgment as a matter of law on all of Plaintiffs’ claims against the
company.
III. Conclusion
The Court concludes that both pending motions by Westinghouse are meritorious. Dr.
Vance’s opinion as to whether Arbogast was exposed to asbestos emanating from
Westinghouse’s product Micarta is excluded for lack of factual foundation. Further, no genuine
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dispute of material fact exists as to whether the specific grade or grades of Micarta encountered
by Arbogast in his employment contained asbestos. Thus, summary judgment shall enter for
Westinghouse and against Plaintiffs. A separate order follows.
DATED this 6th day of June, 2016.

BY THE COURT:

_______________/s/___________________
James K. Bredar
United States District Judge

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