QUEEN v. CBS Corporation, ET AL.

Filing 81

MEMORANDUM ORDER signed by CHIEF JUDGE THOMAS D. SCHROEDER on 12/07/2017. Defendant Union Carbide's motion for summary judgment 69 is GRANTED, and the claims against Union Carbide shall be DISMISSED WITH PREJUDICE. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

JONATHAN A. QUEEN, as Executor
of the Estate of WILLIAM HAROLD
QUEEN, Deceased,
Plaintiffs,
v.
CBS CORPORATION, et al.,
Defendants.

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1:16-CV-00330

MEMORANDUM ORDER
THOMAS D. SCHROEDER, District Judge.
Before the court is the motion of Defendant Union Carbide
Corporation for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure.

(Doc. 69.)

Plaintiff has not filed a

response and has been warned that failure to respond will result
in a decision without hearing.

(Doc. 77.)

For the reasons set

forth below, the motion will be granted.
I.

BACKGROUND
Plaintiff’s

mesothelioma

decedent,

allegedly

as

William
a

result

Harold
of

Queen,

exposure

to

contracted
asbestos-

containing products, including during his employment as a laborer
at

DuPont

from

1964

until

1991.

(Doc.

1

¶ 13(a).)

More

specifically, Plaintiff alleges that Queen would have been exposed
to asbestos both while working as a laborer and while working

around

insulators

equipment

who

insulation.

mixed,

cut,

(Id.)

and

manipulated

Plaintiff

alleges

pipe

and

negligence,

product liability, breach of implied warranty, willful and wanton
conduct, failure to warn, and conspiracy.

(Id.

¶¶ 34, 42, 48,

55, 64, 69.)
Queen’s two co-workers, offered for deposition in the case by
Plaintiff, both testified that they are unaware of any asbestos
exposure Queen had related to Union Carbide.
Doc. 70-3 at 3.)

(Doc. 70-2 at 3;

There is no other evidence of any exposure of

Queen to asbestos manufactured, distributed, or handled by Union
Carbide.

Based on this dearth of evidence, Union Carbide contends

it is entitled to summary judgment.
II.

(Doc. 70 at 6.)

ANALYSIS
Summary judgment is appropriate where 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.”
56(a).
(1986).

Fed. R. Civ. P.

See Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 325
For the purposes of this motion, the court draws all

inferences in favor of Plaintiff as the non-moving party.

See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Here, Plaintiff has failed to respond to Union Carbide’s
motion for summary judgment.

Under the court’s Local Rule 7.3(k),

“[t]he failure to file a brief or response within the time period
specified in this rule shall constitute a waiver of the right
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thereafter to file such brief or response, except upon a showing
of excusable neglect.”

Where there is such a failure, the rule

provides further that “the motion will be considered and decided
as an uncontested motion, and ordinarily will be granted without
further notice.”

L.R. 7.3(k).

However, because even an unopposed dispositive motion must be
supported by the record, the court must satisfy itself that the
motion is warranted.

See Robinson v. Wix Filtration Corp. LLC,

599 F.3d 403, 409 n.8 (4th Cir. 2010) (“[I]n considering a motion
for summary judgment, the district court ‘must review the motion,
even if unopposed, and determine from what it has before it whether
the moving party is entitled to summary judgment as a matter of
law.’” (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416
(4th

Cir.

1993)));

accord

Gardendance,

Inc.

v.

Woodstock

Copperworks, Ltd., 230 F.R.D. 438, 449 (M.D.N.C. 2005) (“As with
summary judgment motions, a court does not grant a motion for
dismissal merely because it is uncontested.

Rather, a district

court should review a motion to dismiss on its merits to determine
whether the pleadings are sufficient.”).
Union Carbide has shown that there is no genuine dispute of
any material fact and that it is entitled to judgment as a matter
of law.
Plaintiff’s
jurisdiction.

claims

rest

(Doc. 1 ¶ 19.)

on

this

court’s

diversity

Union Carbide argues that under
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North Carolina and Fourth Circuit law, Plaintiff cannot show that
exposure to its product was a proximate cause of Queen’s injury.
(Doc. 70 at 6.)

In Lohrmann v. Pittsburgh Corning Corp., 782 F.2d

1156, 1162 (4th Cir. 1986) (applying Maryland law), the court held
that a plaintiff must show that his exposure to a defendant’s
product was a “substantial factor” in causing the disease.

The

court articulated this to mean that a plaintiff must present
“evidence of exposure to a specific product on a regular basis
over some extended period of time in proximity to where the
plaintiff actually worked.”

Id. at 1162-63.

with the requirements of North Carolina law.

This is consistent
See Jones v. Owens-

Corning Fiberglas Corp., 69 F.3d 712, 716 n.2 (4th Cir. 1995)
(finding Lohrmann consistent with North Carolina law, citing North
Carolina law).
It is axiomatic that in the absence of any demonstrated
exposure, a defendant’s product cannot be a factor, much less a
substantial factor, in a plaintiff’s disease.

Because Plaintiff

here has not provided any evidence that Queen was exposed to any
Union

Carbide

asbestos-containing

product,

Plaintiff’s

claims

fail, and Union Carbide’s motion for summary judgment must be
granted.
III. CONCLUSION
For the reasons stated,
IT IS THEREFORE ORDERED that Defendant Union Carbide’s motion
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for summary judgment (Doc. 69) is GRANTED, and the claims against
Union Carbide shall be DISMISSED WITH PREJUDICE.

/s/
Thomas D. Schroeder
United States District Judge
December 7, 2017

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