LOGAN et al v. AIR PRODUCTS AND CHEMICALS, INC. et al
Filing
181
MEMORANDUM OPINION AND ORDER AS TO DEFENDANT FOSTER WHEELER ENERGY CORPORATION signed by JUDGE CATHERINE C. EAGLES on 11/7/2014; that the motion for summary judgment by the defendant Foster Wheeler Energy Corporation, (Doc. 138 ), is GRANTED. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSEPH LOGAN, Personal Representative
of the Estate of Ralph Logan, Deceased,
and LOIS LOGAN,
Plaintiffs,
v.
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AIR PRODUCTS AND CHEMICALS,
INC., et al.,
Defendants.
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1:12-CV-1353
MEMORANDUM OPINION AND ORDER
AS TO DEFENDANT FOSTER WHEELER ENERGY CORPORATION
Catherine C. Eagles, District Judge.
Ralph Logan, the plaintiffs’ decedent, worked at a Getty Oil refinery for thirty
years where he was exposed to asbestos on a regular basis. The defendant, Foster
Wheeler Energy Corporation, sold boilers used at the refinery. Mr. Logan developed
mesothelioma, a cancer caused by exposure to asbestos, which later caused his death.
His estate and wife have sued a number of entities, contending that their products and
conduct caused Mr. Logan’s mesothelioma. Foster Wheeler has moved for summary
judgment.1 Because the plaintiffs have not offered sufficient evidence to prove that Mr.
1
The Court previously granted uncontested motions for summary judgment as to several
defendants and denied several other defendants’ motions for summary judgment. (See Docs.
156, 158, 160, 161, 165.) The Court held open summary judgment motions as to Foster Wheeler
Logan was actually exposed to asbestos from a Foster Wheeler product or that Foster
Wheeler had a duty to warn Mr. Logan about the risks of asbestos-containing
replacement parts in a Foster Wheeler product, the Court will grant the motion.
Background
The facts as stated are either undisputed or viewed in the light most favorable to
the plaintiffs, the non-moving party.2 Almost all relevant evidence comes from the
testimony of Louis Pederson, Mr. Logan’s former co-worker.
Mr. Logan worked as a maintenance supervisor at a Getty Oil refinery in Delaware
from 1956 to 1986. (Doc. 127-1 at 11-12, 15.) The refinery covered 5,000 acres and
included 980 miles of piping. (Doc. 127-1 at 170.) All the asbestos-containing
equipment was outside. (Doc. 127-1 at 171.)
Many types of equipment at the refinery contained asbestos, and maintenance on
this equipment would often involve removing and replacing asbestos-containing
components. (See, e.g., Doc. 127-1 at 22-26, 30-32, 35-41, 46-49, 62-66.) Every two to
three years, “shutdowns” or “turnarounds”3 would occur at the refinery and last for
around thirty days, during which workers would turn off, inspect, and repair many pieces
of equipment. (Doc. 127-1 at 41-44, 284-85.) Mr. Logan’s responsibilities as
and another defendant, The William Powell Company, for the parties to file supplemental
briefing. (Doc. 162.)
2
Docket references for non-deposition evidence are to the docket number and page number
appended by the CM-ECF system. For deposition evidence, page numbers refer to the actual
page numbers of the deposition transcript.
3
A turnaround appears to be the same thing as a shutdown. (See Doc. 127-1 at 174.)
2
maintenance supervisor generally required him to be present when workers serviced
equipment, including pumps, compressors, valves, and boilers. (Doc. 127-1 at 15-19, 2228, 35-48, 107-08.) During shutdowns, Mr. Logan would handle small parts like gaskets
and valves and carry them to job sites. (Doc. 127-1 at 28-29.)
Mr. Pederson knew Mr. Logan because they both worked at the plant for twentyeight years. (Doc. 127-1 at 168.) Mr. Logan began working at the refinery when it
opened in 1956, and Mr. Pederson started in 1957. (Doc. 127-1 at 15.) They worked on
the same team for only one year, around 1967 or 1968, (Doc. 127-1 at 168), but saw each
other daily from 1972 to 1981 when Mr. Logan supervised the area that included the
“crude unit,” which Mr. Pederson supervised. (Doc. 127-1 at 173.) Otherwise, Mr.
Pederson often observed Mr. Logan during shutdowns as part of training new employees
or because he was just “interested in what was going on” during shutdowns. (Doc. 127-1
at 173-74.)
Mr. Pederson estimated there were “[f]ive hundred or so” heat exchangers located
throughout the refinery. (Doc. 127-1 at 113.) In the “cat cracker” unit, two Foster
Wheeler boilers were used as heat exchangers. (Doc. 127-1 at 104, 109.) These Foster
Wheeler boilers were serviced and maintained “strictly on turnarounds.” (Doc. 127-1 at
107.) During shutdowns, workers would open the doors to the boilers to check for and
fix leaks and complete other maintenance and then scrape off and replace the asbestos
rope gaskets that sealed the door. (Doc. 127-1 at 110-14.) Workers had to hand-cut the
replacement rope. (Doc. 127-1 at 115.) This work created asbestos dust. (Doc. 127-1 at
3
111, 117-19.) Mr. Pederson estimated that Mr. Logan worked approximately twenty to
thirty turnarounds of the Foster Wheeler boilers during his career.4 (Doc. 127-1 at 108.)
There may have been more Foster Wheeler boilers on site,5 (Doc. 127-1 at 106-07,
113), but Mr. Pederson’s knowledge appears limited to the two boilers in the cat cracker
unit. (Doc. 127-1 at 104, 307-08.) Mr. Pederson did not know when the boilers in the cat
cracker unit were first serviced and thought the unit probably shut down in 1959 and
1962. (Doc. 127-1 at 310.) While neither Mr. Pederson’s testimony nor his memory
were completely clear about when he first observed Mr. Logan supervise work on the
Foster Wheeler boilers in the cat cracker unit, it appears that it was probably during a
shutdown in 1965 or 1966, and certainly no earlier than a shutdown in 1962. (Doc. 127-1
at 310.) In any event, Mr. Pederson never saw Mr. Logan do service work on these
boilers himself; rather, Mr. Logan would supervise workers and “be in the area.” (Doc.
127-1 at 110-11.)
The plaintiffs presented no evidence on the specific model of any boiler in the cat
cracker unit6 or on whether the Foster Wheeler boilers contained asbestos components7
4
Mr. Pederson did not explain how Mr. Logan participated in twenty to thirty turnarounds
over thirty years when such turnarounds only occurred every two to three years.
5
When asked how many Foster Wheeler boilers were at the refinery, Mr. Pederson
answered, “I would say ten or twelve. I really don’t know.” (Doc. 127-1 at 106-07.)
6
Foster Wheeler has offered evidence that it did not supply boilers or heat exchangers to the
Getty refinery, (see Doc. 137-3 at ¶¶ 5-8), but it accepts Mr. Pederson’s testimony as true for
purposes of this motion. (Doc. 137 at 5.)
7
At one point in his deposition, Mr. Pederson testified that the asbestos-containing material
in the Foster Wheeler boilers was asbestos rope. (Doc. 127-1 at 110.) Later, he called the
4
when originally installed in the refinery. Mr. Pederson testified that he could distinguish
between asbestos and non-asbestos gasketing material and that the boilers in the cat
cracker unit contained asbestos-containing gasketing material. (Doc. 127-1 at 312; see
also Doc. 127-1 at 108.) But, Mr. Pederson believed the original gasketing material in
the boilers would have been replaced in 1959, and he did not know the brand name or
manufacturer of the replacement material, nor whether Foster Wheeler supplied the
replacement material. (Doc. 127-1 at 311-12.)
Foster Wheeler often sold original equipment containing asbestos components,
such as insulation, based on a buyer’s specifications. (See Doc. 142-4 at 5-7.) Foster
Wheeler also approved of several types of asbestos materials for use in its equipment,
including asbestos rope for use in “steam generating units.” (Doc. 142-5 at 3-4, 20.)
Analysis
The plaintiffs assert the following causes of action arising from Mr. Logan’s
alleged exposure to asbestos in Foster Wheeler boilers: negligence, gross negligence,
wrongful death, loss of consortium, breach of implied warranty, fraud, failure to warn,
and negligent hiring, training, and/or supervision. (Doc. 73.) The plaintiffs assert two
theories of liability: (1) that Mr. Logan’s mesothelioma was caused by exposure to
asbestos in Foster Wheeler boilers as originally sold, and, in the alternative, (2) that even
if the asbestos materials in its boilers were third-party replacement parts, Foster Wheeler
material gaskets. (Doc. 127-1 at 311.) It appears undisputed that asbestos rope acted as a
gasketing material to seal the boiler doors. (See Doc. 127-1 at 24, 111, 252.) Mr. Pederson
testified that the only possible source of asbestos in these boilers was the gasketing material.
(Doc. 127-1 at 108.)
5
is liable for failing to warn Mr. Logan about foreseeable exposures to asbestos-containing
replacement parts in its boilers. (Doc. 142 at 12.) Foster Wheeler has moved for
summary judgment. (Doc. 138.)
Summary judgment is appropriate when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). The movant has the initial burden to show the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the movant satisfies its burden, the burden shifts to the non-movant to
produce admissible evidence from which the fact-finder might return a verdict in his
favor. Anderson, 477 U.S. at 257.
1. Actual Exposure to Asbestos from Foster Wheeler Products
In cases arising under North Carolina law, a plaintiff who develops asbestosis
allegedly as a result of exposure to asbestos “must demonstrate that he was actually
exposed to the alleged offending products.” Wilder v. Amatex Corp., 314 N.C. 550, 55354, 336 S.E.2d 66, 68 (1985). It is not enough for a plaintiff “simply to show that [the
offending] products were shipped to various job sites on which he worked.” Id. at 554,
336 S.E.2d at 68. In Wilder, the North Carolina Supreme Court concluded that the
plaintiff’s evidence that he intermittently worked around the defendant’s products for
roughly fifteen years of his forty-year career was sufficient to create a question of fact on
whether the plaintiff was actually exposed to the defendant’s products. Id. at 552-54, 336
S.E.2d at 67-68. Neither party has suggested that this rule would not apply in a case
where the plaintiff or her decedent developed mesothelioma.
6
Viewed in the light most favorable to the plaintiffs, Mr. Pederson’s testimony
amounts to evidence that Mr. Logan worked in the area of two Foster Wheeler boilers
that had asbestos-containing gasketing material removed and replaced twenty to thirty
times in thirty years. There is no evidence that the boilers contained asbestos-containing
gaskets when sold by Foster Wheeler. Absent additional evidence, this is insufficient to
allow a fact-finder to infer that Mr. Logan was exposed to asbestos from a Foster
Wheeler product.
In support of their contention that the original Foster Wheeler boilers contained
asbestos materials, the plaintiffs appear to rely on an affidavit that has been stricken, (see
Doc. 142 at 4, 7; Doc. 179), Foster Wheeler interrogatory answers in an earlier, unrelated
matter, and a Foster Wheeler insulation catalog. (Doc. 142 at 3-4.)8 However, they do
not direct the Court’s attention to specific pages in these twenty-plus-page exhibits that
support their contentions.9 Based on the Court’s review of these exhibits, they appear to
say only that Foster Wheeler sold some products that contained asbestos, that Foster
8
Possibly, the plaintiffs also rely on interrogatory answers in another case from Garlock,
Inc., that state that Garlock’s gaskets contained asbestos. (See Doc. 163 at 4-6.) However,
Foster Wheeler is mentioned nowhere in the interrogatories, (see Doc. 142-8), and nothing
indicates this evidence is at all connected to the Foster Wheeler boilers at the Getty refinery;
thus, this evidence adds nothing.
9
The Court is not required to scour the record to find support for a party’s factual assertions.
See Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1 n.1 (M.D.N.C.
Mar. 7, 2014) (“A party should not expect a court to do the work that it elected not to do.”); see
also Stephenson v. Pfizer Inc., No. 1:13cv147, 2014 WL 4410580, at *1 n.1 (M.D.N.C. Sept. 8,
2014) (holding that the Court is not obliged to “investigat[e] the basis of claimed facts”); L.R.
56.1(d) (requiring that briefs filed in connection with summary judgment motions “point to
specific, authenticated facts existing in the record”); L.R. 7.2(a)(2).
7
Wheeler would use asbestos products in its equipment when a buyer specified, and that
Foster Wheeler approved of the use of asbestos rope in steam generating units.
In the interrogatories, for example, Foster Wheeler said that “[i]n some instances
. . . the equipment or services provided by [Foster Wheeler] might have involved the use,
application or procurement of asbestos products manufactured by others,” (Doc. 142-4 at
15, and “[o]ftentimes, specifications [for asbestos components] were provided by the
customer or client.” (Doc. 142-4 at 6.) The catalog states that it “is to be used only for
. . . consideration while furnishing bids, materials and/or services” to Foster Wheeler
“during fabrication and installation of insulation on Foster Wheeler Steam Generating
Units,” (Doc. 142-5 at 3), and lists a variety of asbestos products, including asbestos
rope. (Doc. 142-5 at 4-9, 14-22.) Perhaps one can infer that a “steam generating unit” is
the same as or similar to a boiler or heat exchanger. (See Doc. 127-1 at 113-14
(describing some operations of “exchangers” as involving steam).) Even so, this
evidence only shows that some Foster Wheeler boilers may have contained asbestos
components if a buyer requested them and does not show that the boilers at the Getty
refinery contained asbestos-containing gaskets or rope when sold by Foster Wheeler.
Even if the Court were to assume the original boilers contained asbestos, Mr.
Pederson was not present during the first shutdown in 1959 and thus cannot testify as to
Mr. Logan’s specific role during that shutdown, nor can he testify as to whether Mr.
Logan was near the two Foster Wheeler boilers in the cat cracker unit when workers
removed and replaced the gasketing material during that shutdown. For subsequent
shutdowns, Mr. Pederson said workers would have removed replacement gasketing
8
material, (see Doc. 127-1 at 248)—material from an unknown manufacturer and not
linked to Foster Wheeler. (Doc. 127-1 at 311-12.)
Thus, the plaintiffs have presented no evidence from which a fact-finder could
infer that the two Foster Wheeler boilers in the cat cracker unit contained asbestos
gaskets when sold by Foster Wheeler and no evidence that Mr. Logan was exposed to
asbestos from these boilers. Absent such evidence, Foster Wheeler is entitled to
summary judgment. See Wilder, 314 N.C. at 553-54, 336 S.E.2d at 68 (“[P]laintiff’s
evidence must demonstrate that he was actually exposed to the alleged offending
products.”); see also Mullis v. Armstrong Int’l, Inc., No. 2:12-60155-ER, 2013 WL
5548838, at *1 n.1 (E.D. Pa. Aug. 20, 2013) (granting summary judgment for the
defendant in a case applying North Carolina law because the plaintiff did not present
evidence of exposure to asbestos from a product made or supplied by the defendant, as
opposed to a replacement product made and supplied by another entity); Agner v. Daniel
Int’l Corp., No. 3:98CV220, 2007 WL 57769, at *4 (W.D.N.C. Jan. 5, 2007) (“The
failure to specifically identify a defendant’s presence warrants a grant of summary
judgment.”).
The plaintiffs contend that because Mr. Logan developed mesothelioma, the Court
should apply a “relaxed Lohrmann test.”10 (Doc. 144 at 10-12.) Whatever the merits of
10
See Mullis, 2013 WL 5548838, at *1 n.1 (collecting and rejecting cases applying a
“modified or adjusted” Lohrmann test in mesothelioma cases as inconsistent with a prediction
that the North Carolina Supreme Court would adopt the Lohrmann test); see also Ford Motor
Co. v. Boomer, 736 S.E.2d 724, 728-33 (Va. 2013) (rejecting the “substantial factor” test in
Lohrmann under Virginia law in mesothelioma case).
9
this argument as to causation, it has no merit as to exposure, for the reasons stated by the
Court in connection with the summary judgment motion of another defendant in the case.
(See Doc. 180 at 8-9.) In summary, the Lohrmann test cannot be modified to such an
extent that the plaintiffs do not have to prove actual exposure to asbestos from the
defendant’s product; that would be inconsistent with Wilder, a North Carolina Supreme
Court case almost directly on point.
2. Liability Based on Failure to Warn
The plaintiffs next contend that even if the asbestos materials in Foster Wheeler
boilers were installed after Foster Wheeler sold the boilers to the refinery and were made
and supplied by others, Foster Wheeler should be liable for failing to warn users about
foreseeable exposures to asbestos-containing replacement parts. (Doc. 142 at 12.)
In cases arising under North Carolina law, to create a jury question in a products
liability action under a failure to warn theory, a plaintiff must present sufficient evidence
that: (1) the manufacturer or seller of a product acted unreasonably in failing to provide a
warning or instruction; (2) the failure was a proximate cause of the harm; and (3) either,
when the product left its control, the manufacturer or seller knew or should have known
that the product posed a substantial risk of harm to a reasonably foreseeable user, or, after
the product left its control, the manufacturer or seller became aware or should have
become aware that the product posed a substantial risk of harm to a reasonably
foreseeable user or consumer. Evans v. Evans, 153 N.C. App. 54, 57-58, 569 S.E.2d 303,
305-06 (2002) (citing N.C. Gen. Stat. § 99B-5(a)).
10
The plaintiffs contend that (1) Mr. Logan was a foreseeable user of the Foster
Wheeler boilers because he supervised the replacement of the gasketing material, (Doc.
142 at 4, 12), and (2) the use of asbestos-containing replacement gaskets in Foster
Wheeler boilers was foreseeable. (Doc. 142 at 12-14.) The plaintiffs contend that these
two facts, taken together, imposed on Foster Wheeler a duty to warn Mr. Logan about the
dangers of asbestos.
Neither party appears to dispute that Mr. Logan was a foreseeable user of the
boilers. The issue here turns on the foreseeability of Getty’s use of asbestos-containing
replacement parts in the Foster Wheeler boilers. In support of their contention that Foster
Wheeler knew or should have known that Getty would make such use, the plaintiffs
assert that “the normal use of Foster Wheeler boilers involved the use of asbestos gaskets
and rope,” (Doc. 142 at 13), that “Foster Wheeler specified the use of asbestos rope and
gaskets,” and that “the use of these asbestos materials was specified and integrated into
Foster Wheeler boilers.” (Doc. 142 at 14.) If the plaintiffs presented evidence on even
one of these assertions, perhaps this would be sufficient to give rise to a disputed question
of material fact, but they have not.
In their recitation of facts, the plaintiffs rely on an affidavit of Walter Newitts for
the assertion that Foster Wheeler specified the use of asbestos in all boilers after the late
1950s. (Doc. 142 at 4.) That affidavit has been stricken. (See Doc. 179.) The plaintiffs
also maintain that the Foster Wheeler insulation catalog contains “information about
asbestos rope and its use on Foster Wheeler boilers” and shows that Foster Wheeler
approved of and recommended its use. (Doc. 163 at 3-4.) The Court is unable to confirm
11
this assertion beyond the mere existence of the words “asbestos rope” in the catalog,
(Doc. 142-5 at 4, 20), and references to “steam generating units,” (Doc. 142-5 at 3),
which might be boilers or heat exchangers. To the extent the plaintiffs rely on the Foster
Wheeler interrogatory answers, that evidence merely establishes that Foster Wheeler sold
some products that contained asbestos and that Foster Wheeler would use asbestos
products in its equipment when a buyer specified.11 In any event, nothing connects the
products referenced in the catalog or interrogatories to the specific kind of boilers in the
cat cracker unit at the refinery. To infer such a connection would be to speculate.
In summary, the plaintiffs have not proffered sufficient evidence that shows Foster
Wheeler knew or should have known that Getty would use asbestos-containing
replacement parts in the two Foster Wheeler boilers in the cat cracker unit, much less that
Foster Wheeler required or recommended such use. See Evans, 153 N.C. App. at 57-58,
569 S.E.2d at 306; see also N.C. Gen. Stat. § 99B-5(a). Given the lack of evidence on
the foreseeability of Getty using asbestos-containing replacement parts in Foster Wheeler
boilers, the plaintiffs cannot prove that Foster Wheeler had a duty to warn Mr. Logan
about the dangers of asbestos.
Conclusion
The plaintiffs have offered insufficient evidence to raise a disputed question of
material fact as to whether Mr. Logan was exposed to asbestos from a Foster Wheeler
11
As noted supra, to the extent the plaintiffs rely on the Foster Wheeler interrogatory
answers and insulation catalog, they have failed to specifically identify the parts of those multipage exhibits that support their assertions.
12
product or as a result of Foster Wheeler’s failure to warn. For this reason, it is
ORDERED that the motion for summary judgment by the defendant Foster Wheeler
Energy Corporation, (Doc. 138), is GRANTED.
This the 7th day of November, 2014.
__________________________________
UNITED STATES DISTRICT JUDGE
13
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