FINCH, et al v. BASF CATALYSTS LLC, et al.

Filing 351

MEMORANDUM OPINION AND ORDER, Signed by JUDGE CATHERINE C. EAGLES on 08/22/2018, that the defendant McNeil & NRM's motion to strike, Doc. 322 , is GRANTED. FURTHER ORDERED that the defendant McNeil &NRM's motion for summary judgment, Doc. 288 , is GRANTED. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ANN FINCH, Individually and as
Executrix of the Estate of Franklin
Delenor Finch,
Plaintiff,
v.
BASF CATALYSTS LLC, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

1:16-CV-1077

MEMORANDUM OPINION AND ORDER
Catherine C. Eagles, District Judge.
Franklin Finch, the plaintiff’s late husband, began working at a Firestone tire
factory in Wilson, North Carolina in 1975. Doc. 307-1 at 6. He worked on tire presses
there until he retired in 1995. Id. Mr. Finch was diagnosed with mesothelioma in March
2016 and died on January 25, 2017. Doc. 303-12 at 5–7. Ms. Finch contends that after
1979, defendant McNeil & NRM, Inc. supplied asbestos-containing platen insulators,
gaskets, and other replacement parts to the Firestone plant and that Mr. Finch’s exposure
to asbestos from these MNRM parts caused his mesothelioma. MNRM moves for
summary judgment, contending that the plaintiff has insufficient evidence Mr. Finch was
exposed to asbestos from MNRM replacement parts.
The Court will grant summary judgment because no reasonable jury could find on
the evidence presented that Mr. Finch’s exposure to MNRM’s products caused Mr.
Finch’s mesothelioma. MNRM cannot be liable for injuries caused by asbestos-

containing parts that it did not supply, many of the parts it sold did not contain asbestos,
and, for the asbestos-containing gaskets, gear reducers, and platen insulators MNRM did
sell, no reasonable jury could conclude that Mr. Finch was exposed to these products with
sufficient frequency, regularity, or proximity to support the inference of causation
necessary for liability. The Court will grant MNRM’s motion to strike to the extent that
the answers go beyond simply authenticating documents.
I.

Facts viewed in the light most favorable to the plaintiff. 1
A. The Curing Department, the Equipment, and the Parts Sold by MNRM
The Firestone plant in Wilson was built in 1973 and 1974. Another defendant,

McNeil Ohio, supplied over 100 asbestos-containing tire presses to the plant at that time.2
MNRM’s predecessor came into existence in 1979. Doc. 289-5 at ¶ 3. Soon thereafter, it
bought certain assets from McNeil Ohio. Id. at ¶ 4. MNRM sold replacement parts,
spare parts, and services for the existing McNeil Ohio presses. E.g., Doc. 289-4 at 13,

1

MNRM disputes many of these facts. At summary judgment, of course, the Court views
the evidence in the light most favorable to Ms. Finch, the non-moving party. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962). The Court has made reasonable efforts to do so, despite
the limited help provided by Ms. Finch’s briefing. That briefing often camouflaged the issues by
glossing over basic but crucial facts, Doc. 32 at ¶ 1 ( court’s order indicating that “factual
assertions unsupported by citation to specific evidence in the record will be disregarded”),
providing exaggerated factual claims that did not match up to the evidence cited, and relying on
unstated and often misleading stacked inferences, contravening evidentiary requirements. See
Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013) (noting that a non-moving party must
rely on more than “conclusory allegations, mere speculation, the building of one inference upon
another, or the mere existence of a scintilla of evidence”).
2

It is undisputed that MNRM does not have liability for any harm caused by the tire presses
sold before 1979. Doc. 307 at 4 (plaintiff’s brief conceding that MNRM is not responsible for
the 112 presses sold before October 1979).
2

26; Doc. 307-20. MNRM did not sell any asbestos-containing tire presses to the plant.
See Doc. 289-3 at 9.
During his twenty years at the Firestone plant, Mr. Finch worked as a setup man,
changing tire molds on these tire presses. Doc. 307-1 at 6, 9; Doc. 307-3 at 25 (noting
that “setup man” or “mold changer” refers to the same position). All of the tire presses
were in one large open space, referred to as the curing room or curing department. Doc.
307-1 at 6–8. Mr. Finch worked in this room all day, every day. Id.
The tire presses were large, Doc. 289-11 and Doc. 289-5 at ¶ 15, and there were
many of them: anywhere from 120 to more than 150 over the years Mr. Finch worked
there. Doc. 307-1 at 8, 15 (120 tire presses in 1975); Doc. 307-2 at 12 (150 presses in
1980). The curing room was huge: approximately 40 acres with 25-foot-high ceilings.
Doc. 289-2 at 5. Many supervisors rode bicycles from point-to-point, Doc. 307-2 at 12,
and mold changers, like Mr. Finch, often spent about one-third of their work day
commuting around the curing room on fork lifts. Doc. 307-3 at 138–39.
Each tire press held two tire molds and could thus cure or “cook” two tires at a
time. 3 Doc. 289-9 at 5. The tire molds on each tire press were bolted onto a platen,
which is a flat, steel heating element on either side of the mold; much like a waffle iron,
the tire press would close on the mold and the heated platens would cook the green tire in
a process involving pressure and heat. Doc. 307-1 at 9; see also Doc. 289-9 at 6, 13, 16.

As the Court understands it, curing—or “cook[ing]”—a tire is the process of applying heat
and pressure to a “green tire” in a mold to impart the final shape and tread onto the tire. See
Doc. 289-9 at 16.
3

3

Each tire mold was separately bolted onto the top and bottom platen. Doc. 307-1 at 9;
Doc. 289-9 at 6.
Underneath each platen there was a platen insulator, which was designed to hold
in heat. Doc. 307-1 at 9–10. The original platen insulators in the tire presses—which
MNRM did not sell—contained asbestos. See Doc. 289-3 at 5 (noting that the tire
industry did not begin to transition away from asbestos-containing products until
approximately 1978). The bolts that secured the mold to the platen ran through the platen
insulator. Doc. 307-1 at 9–10.
MNRM sold more than 100 platen insulators to the tire plant between 1979 and
1984, Doc. 307-6 at 43–44 and Doc. 289-3 at 7–8, which were made from asbestoscontaining Transite board. Doc. 289-12 at 6, 8; see also Doc. 289-3 at 7–8, 11 (MNRM
expert’s report acknowledging that MNRM’s invoices show Transite as the material for
more than 100 platen insulators). 4 Transite is a Johns Manville product made of Portland
cement with added asbestos fibers. Doc. 289-3 at 11; Doc. 307-14.
Each tire press also had two sets of heat shields. The inner heat shields are
essentially enclosures that surround the sides of the curing tire to retain heat as the tire

Ms. Finch did not specifically direct the Court’s attention to evidence disclosing the number
of asbestos-containing parts that MNRM sold to the Wilson tire plant. Her brief discussing the
extent of such sales is non-specific as to numbers and when she does cite to evidence about sales,
she refers to multi-page exhibits without pin cites, e.g., Doc. 307 at 10 (citing to Doc. 307-9,
comprising some 28 pages, and Doc. 307-18, comprising some 8 pages), in violation of this
Court’s Order, Doc. 32 at ¶ 1 (indicating that “factual assertions unsupported by citation to
specific evidence in the record will be disregarded” and noting that “citation[s] to a multi-page
exhibit must contain a pin cite”), and the Local Rules. LR 7.2(a) (requiring that “[e]ach
statement of fact [ ] be supported by reference to a part of the official record in the case”).
Because Ms. Finch did not propose alternate numbers to those MNRM’s expert provided and
that MNRM cited, the Court will rely on these numbers for summary judgment purposes.
4

4

cures. Doc. 289-9 at 21–25. The inner heat shields did not contain any insulation. Doc.
289-4 at 19 (noting that these heat shields “had [ ] no material” and instead used an “air
gap”). The original outer or secondary heat shields that McNeil Ohio supplied contained
asbestos insulation. See id.; Doc. 289-3 at 13. After 1979, MNRM shipped 17 sections
of these secondary heat shields to the plant, but none contained asbestos. Doc. 289-3 at
13; Doc. 289-12 at 9–10.
MNRM also sold the tire plant more than 2000 asbestos-containing gaskets. Doc.
289-3 at 8.5 Gaskets were used on the plant’s steam system, Doc. 303-12 at 7, and on the
steam piping that connected to the press. Doc. 307-2 at 24. There were also a number of
gaskets associated with the tire presses. Doc. 307-3 at 64–65. The gaskets that MNRM
supplied, however, were internal to the tire press, encased by steel, and not accessible to
mold changers. Doc. 289-3 at 9.
Finally, MNRM sold seven gear reducers to the tire plant. Doc. 289-4 at 62. A
gear reducer is a pre-assembled unit consisting of the gear, the motor, and the brake and
is part of the unloader. Id. at 26–27. These gear reducers included Stearns brakes as a
component and contained asbestos. Id. at 62; Doc. 307-8 at 12–13 (noting that the
friction discs in all Stearns brakes contained asbestos until 1986). These particular gear
reducers were a part of the unloaders, which were behind the presses and were used to

MNRM’s Rule 30(b)(6) witness agreed that MNRM invoices showed the sale of “copper
asbestos gaskets.” Doc. 307-5 at 63 (agreeing that invoices showed sales of 220 copper asbestos
gaskets in February 1980, “hundreds” in December 1981, and 300 more on another date in
1981); Doc. 307-9 (various gasket invoices); see also Doc. 289-3 at 8 (MNRM’s expert report
acknowledging invoice evidence that that MNRM shipped 2,060 copper asbestos gaskets and
two Raybestos manifold gaskets containing asbestos to Firestone plant).
5

5

unload the tires from the press after they were cooked. Doc. 321-2 at 6–7. A “loader”
and an “unloader” are not the same piece of equipment. See Doc. 321-4 at 7 (referring
separately to the loader, unloader, and tire press); Doc. 289-5 at ¶ 12 (same). Other than
the seven gear reducers, MNRM did not sell any replacement brakes or replacement
brake parts to the plant. Doc. 289-3 at 13–14; Doc. 289-4 at 26–27. Nor did MNRM sell
any pipe insulation to the plant. Doc. 289-4 at 28.
B. Mr. Finch’s Work at the Plant
Mr. Finch changed multiple tire molds per day for many years. He testified that
he worked as a setup man for approximately 19 years and that on average he would
change out four tire molds per day. Doc. 307-1 at 6, 12.
To change a tire mold, Mr. Finch would first unbolt the bottom mold from the
bottom platen. Doc. 307-1 at 9–10. After Mr. Finch removed the bottom mold, he would
then manually remove the top heat shields that blocked his access to the top molds. Id. at
10. Each heat shield was one-inch thick and weighed between forty and fifty pounds. Id.
After removing the top heat shields, Mr. Finch would stand on the edge of the machine
and remove the top mold from the top platen. Id. The top mold was secured in the same
fashion as the bottom mold—i.e., with bolts running from the top platen through the top
platen insulator. Id. There was also a heat shield adjacent to the bottom tire molds, but it
seems that Mr. Finch did not have to remove this to change the bottom molds. See id.
Before installing the new molds, Mr. Finch would clean the area by blowing off the
platen and the platen insulation with compressed air, causing a white powdery dust to rise

6

into the air. Id. at 10–11. He would then install the new molds in reverse-order: he rebolted the top molds, reinstalled the top heat-shields and re-bolted the bottom molds. Id.
At any given time, there were five other set-up men changing molds in the curing
room at the same time as Mr. Finch. Doc. 307-1 at 13. In addition to these individuals,
five mechanics typically worked in the curing room during each shift. Id. at 15.
Additional evidence will be discussed as is relevant.
II.

Causation in Asbestos Disease Cases
The Fourth Circuit has held in an asbestos and lung cancer case arising under

North Carolina law6 that the 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.’” Jones v. Owens–Corning Fiberglas Corp. & Amchem Prods.,
Inc., 69 F.3d 712, 716 (4th Cir. 1995) (quoting and applying Lohrmann v. Pittsburgh
Corning Corp., 782 F.2d 1156, 1162–63 (4th Cir. 1986), to North Carolina case). This is
known as the “Lohrmann test” or the “frequency, regularity, and proximity test,” and
federal courts have applied it routinely for many years to evaluate proximate cause in
asbestos cases arising under North Carolina law.7

6

The parties have all briefed the motion applying North Carolina law.

7

See, e.g., Haislip v. Owens–Corning Fiberglas Corp., 86 F.3d 1150 (table), 1996 WL
273686, at *2 (4th Cir. May 23, 1996) (per curiam) (unpublished) (applying Lohrmann to North
Carolina case involving a plaintiff with mesothelioma); Yates v. Air & Liquid Sys. Corp., No.
5:12–cv–752–FL, 2014 WL 4923603, at *22–23 (E.D.N.C. Sept. 30, 2014), on reconsideration
sub nom. Yates v. Ford Motor Co., No. 5:12-CV-752-FL, 2015 WL 9222834 (E.D.N.C. Dec. 17,
2015) (applying “the Jones/Lohrmann test” to North Carolina case involving a plaintiff with
mesothelioma); see also Jandreau v. Alfa Laval USA, Inc., No. 2:09–91859–ER, 2012 WL
2913776, at *1 n.1 (E.D.Pa. May 1, 2012) (applying Lohrmann to North Carolina case involving
7

Mr. Finch need not have worked directly with the defendant’s products. See
Roehling v. Nat’l Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir.
1986). Rather, bystander or indirect exposure may be enough, if the exposure was
proximate and significant. See id. (“The evidence, circumstantial as it may be, need only
establish that [the plaintiff] was in the same vicinity as witnesses who can identify the
products causing the asbestos dust that all people in that area, not just the product
handlers, inhaled.”). But the mere presence of “static asbestos” does not necessarily
equate to asbestos exposure. See Andrews v. A W Chesterton Co., No. 2:13-CV-2055RMG, 2015 WL 12831332, at *2 (D.S.C. June 5, 2015).
III.

Analysis
As noted supra, there is evidence that MNRM sold asbestos-containing platen

insulators, gaskets, and gear reducers to the Wilson tire plant and that these products were
used in the curing room where Mr. Finch worked. However, there is insufficient
evidence from which a jury could conclude that Mr. Finch was exposed to asbestos fibers
from these MNRM products on a frequent and regular basis.
A.

Platen Insulation
As noted, Ms. Finch has evidence that MNRM sold Firestone approximately 100

asbestos-containing platen insulators over a five-year period. There is no direct evidence
as to whether some or all of the MNRM insulators replaced original McNeil insulators,

a plaintiff with mesothelioma and predicting that the North Carolina Supreme Court would adopt
the Lohrmann test).

8

whether some or all replaced other MNRM insulators, or whether the MNRM insulators
replaced platen insulators from other companies. Nonetheless, since there were
approximately 100 presses in the curing room, and each press had 4 platen insulators, one
can infer that MNRM sold possibly as many as a quarter, and no more than a quarter, of
the platen insulators in the curing room in the mid-1980s. These insulators were used in
the tire presses and Mr. Finch worked near them for several hours a day.
However, the mere presence of asbestos in the platen insulators that MNRM sold
is insufficient to establish that asbestos fibers were released into the air while Mr. Finch
was working on the presses. Ms. Finch’s evidence is that all of the platen insulators sold
by MNRM were made of Johns Manville Transite. Supra, Part I.A. MNRM has offered
evidence that Transite was a hard flat plate made from Portland cement with added
asbestos fibers, Docs. 289-3 at 11 and 289-13 at 25, and coated with waterproofing
materials. Doc. 289-3 at 11. Because the asbestos fibers were encapsulated in concrete
and sealed for water/moisture resistance, the “asbestos fibers would have ‘locked-in,’
substantially restricting, if not eliminating” the release of asbestos fibers. Id. Ms. Finch
has offered no evidence to the contrary.8 See Fed. R. Civ. P. 56(e) (noting that a court

At oral argument, Ms. Finch directed the Court’s attention to an expert report by Dr.
Holstein in an effort to show that Transite degraded and released asbestos fibers. However, she
did not cite to this evidence in her brief in opposition to MNRM’s summary judgment motion.
Because “[r]aising such new arguments for the first time at oral argument undermines the
purpose of orderly briefing and risks subjecting an opponent to an unfair disadvantage,” the
Court find that MNRM’s evidence is undisputed. See N.C. All. for Transp. Reform, Inc. v. U.S.
Dep’t of Transp., 713 F. Supp. 2d 491, 510 (M.D.N.C. 2010); see also Fed. R. Civ. P. 56(e).
Moreover, it violates the Local Rules, which require citation to evidence in the briefs. LR 7.2(a).
In any event, Dr. Holstein’s report does not clearly support Ms. Finch’s argument. See Doc.
303-12 at 7–8, 12.
8

9

may consider a “fact undisputed” when a party “fails to properly address another party’s
assertion of fact”); Catalan v. House of Raeford, 17 F. Supp. 3d 520, 525 (E.D.N.C.
2014) (facts in moving party’s summary judgment motion that are unaddressed or
unrebutted are considered uncontroverted for purposes of the motion). In short,
MNRM’s evidence that any asbestos was encapsulated is not disputed. The presence of
such “static asbestos” does not equate to asbestos exposure sufficient to support an
inference of causation. See Andrews, 2015 WL 12831332, at *2.
The plaintiff contends that Mr. Finch was exposed to asbestos fibers when he
“blew off” the platen and the platen insulator every time a tire mold was changed, which
Mr. Finch testified caused a white powdery dust to rise into the air. Doc. 307-1 at 10–11;
see also Doc. 307-2 at 19. However, Ms. Finch has presented no evidence that the white
powdery dust contained asbestos fibers from the platen insulators, as opposed to the heat
shields or some other part. The platen insulators were sandwiched between the platens
and at best only a small surface area of the insulators was exposed. Doc. 289-3 at 11; see
Doc. 307-1 at 9–10 (noting that the platen insulation was underneath the platen). Ms.
Finch’s evidence about white powdery dust is not enough to connect the dust to MNRM’s
insulators or to prove the dust contained asbestos fibers. It does not overcome MNRN’s
uncontested evidence that the Transite it sold was coated so as not to release fibers.9

At oral argument, Ms. Finch directed the Court’s attention to evidence she submitted in
opposition to a summary judgment motion by defendants FMC Corporation and Rexnord
Industries, LLC, noting that she incorporated this evidence in her brief in opposition to this
motion. Ms. Finch’s consolidated opposition to FMC and Rexnord, Doc. 303, is 18 pages long,
and incorporation of this brief by reference would result in a brief well outside the word limits
9

10

The plaintiff next contends that Mr. Finch was exposed to asbestos fibers when he
bolted and unbolted the molds, since the bolts went through the platen insulators.
However, MNRM has offered undisputed evidence that the bolts securing the tire molds
to the platen did not come into contact with the platen insulators. Doc. 289-4 at 31
(stating that the bolts in question “would never touch the insulator . . . it couldn’t touch
the insulator”). Moreover, Mr. Finch testified that removing the bolts created “very
little” dust. Doc. 307-1 at 9.
Ms. Finch also relies on testimony from a co-worker, Harry Stanton, that he
observed maintenance workers performing preventative maintenance or replacing platen
insulation on a “daily” basis. Doc. 307-2 at 18. While Mr. Finch did not personally work
with the platen insulators, Doc. 289-2 at 6, Mr. Stanton testified that he saw Mr. Finch in
the area while maintenance was working on platen insulation “every day.” Doc. 307-2 at
18–19. However, Mr. Stanton described the platen insulation as “fibrous,” “almost
spongy,” and “yellow or pink” in color. Doc. 307-2 at 18, 53. Ms. Finch has presented
no evidence that Transite came in this form, and MNRM’s uncontradicted evidence is
that Transite platen insulators were a “hard solid flat plate,” not a “fluffy type insulation,”
Doc. 289-3 at 11, that was “natural gray” in color. Doc. 321-7 at 20. MNRM cannot be
liable for harm caused by exposure to platen insulators it did not sell.

set for summary judgment briefs. See LR 7.3(d). Moreover, she has not directed the Court’s
attention to the places in those briefs that address issues relevant to MNRM’s motion, and
“[j]udges are not like pigs, hunting for truffles buried in briefs.” United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991).
11

Finally, the plaintiff contends that Mr. Finch was exposed to asbestos because
MNRM’s Transite platen insulators were breaking up and releasing dust. She offers
evidence that the original McNeil Ohio platen insulators were “breaking up” on the
majority of the tire plant’s presses by 1975. Doc. 307-35 at 3. She also shows that the
Transite platen insulators at a different tire plant were “breaking up badly” in 1984. Doc.
307-36 at 2. This vague and unclear evidence, which either relates to insulators that
another entity sold or to insulators at another plant, is insufficient to establish that the
Transite insulators MNRM sold to the Firestone plant in Wilson “broke down” to such a
degree that Mr. Finch was regularly exposed to asbestos from the insulators. See
Lohrmann, 782 F.2d at 1162 (putting forth the frequency, regularity, proximity standard).
The plaintiff has not shown that Mr. Finch was frequently, regularly, and
proximately exposed to asbestos fibers from asbestos-containing platen insulators that
MNRM sold. Her evidence is insufficient to support an inference that these platen
insulators caused harm to Mr. Finch.
B.

Gear Reducers

MNRM sold seven gear reducer units to the tire plant in 1980 and 1981 that
contained asbestos in the Stearns brakes that were part of the units. Doc. 289-4 at 62;
Doc. 307-8 at 12 (noting that the friction discs in all Stearns brakes contained asbestos
until 1986). The mere presence of asbestos in these particular gear reducers, however, is
not sufficient to establish exposure as to Mr. Finch. See Andrews, 2015 WL 12831332, at
*2 (noting that the “mere presence of ‘static asbestos’ does not equate to asbestos
exposure”). There is zero evidence that Mr. Finch worked on or in close proximity to
12

these gear reducers, which were located in the unloaders behind the press, not in the area
of the press where Mr. Finch worked. Nor is there evidence that mechanics ever sanded
down or used compressed air on the gear reducer for an unloader, much less that they did
so in proximity to Mr. Finch. All of Ms. Finch’s evidence bears on the loaders and tire
presses.
Moreover, the very small number of gear reducers—seven—that MNRM supplied
goes against finding frequent and regular exposure. The record shows that each press
could cure two tires simultaneously, Doc. 289-9 at 5, meaning that there would be two
unloaders per tire press. Because there were 150 tire presses in 1980, Doc. 307-2 at 12,
and not accounting for replacement, this means that MNRM supplied only seven of the
300 gear reducers—or about 2.3 percent—that would have been in the curing room at a
particular point in time. Even if Mr. Finch did work regularly in proximity to unloaders,
there is no evidence that he worked around the particular unloaders that contained the
seven gear reducers that MNRM supplied. See Lohrmann, 782 F.2d at 1163 (exposure to
asbestos source 10 to 15 times over the course of the plaintiff’s career held to be
insufficiently frequent or regular as a matter of law); see also Wilder v. Amatex Corp.,
314 N.C. 550, 553–54, 336 S.E.2d 66, 68 (1985) (finding that “at trial plaintiff’s evidence
must demonstrate that he was actually exposed to the alleged offending products”).
No reasonable jury could find that Mr. Finch was exposed to asbestos-dust from
MNRM’s gear reducers with the requisite frequency, regularity, or proximity to support
an inference of causation. Even if the required degree of frequency, regularity, and
proximity is lower in a mesothelioma case, the Court finds no support for the view that
13

North Carolina courts would allow an inference of causation to be drawn from such a
small possible exposure.
C.

Gaskets
The plaintiff appears to contend that Mr. Finch was exposed to MNRM’s asbestos-

containing gaskets during maintenance. As to the copper-asbestos gaskets, MNRM
proffers undisputed evidence that the asbestos-material was encapsulated so that there
was “virtually no release of [ ] asbestos fibers.”10 Doc. 289-12 at 11; see also Doc. 289-3
at 9–10. MNRM also offered evidence that these gaskets were easily removed and would
not have required the scraping that Ms. Finch contends caused the release of asbestos
fibers. Doc. 289-3 at 10. This evidence was put forward in MNRM’s initial brief in
support of summary judgment, and Ms. Finch did not address it in her response brief,
much less offer conflicting evidence.11
Even putting aside MNRM’s evidence concerning the encapsulation of the
asbestos fibers in its gaskets, the plaintiff has pointed to no evidence that Mr. Finch was
regularly exposed to asbestos from MNRM’s gaskets. Mr. Singleton, a maintenance
contractor, said that maintenance work on the gaskets in the curing room was
“infrequent” and occurred only when there was an emergency call. Doc. 289-15 at 3–4.
Although there is a double negative in the expert’s testimony, the meaning is clear. Doc.
289-12 at 11. In the next sentence, the expert testified that because of the copper encasement,
the asbestos “would not be friable . . . it could never be friable.” Doc. 289-12 at 11. See Friable,
Oxford English Dictionary (2d ed. 1989) (defining “friable” as “[c]apable of being easily
crumbled or reduced to powder; pulverizable, crumbly”).
10

11

Plaintiff first attempted to dispute the evidence at oral argument. This effort will be
disregarded. See n. 8 supra.
14

And Mr. Finch testified that he never saw, handled, or in any way worked with the
gaskets in the presses. See, e.g., Doc. 307-1 at 13. While Mr. Finch testified he called a
mechanic to a tire press he worked on from once a week to once a month, that mechanic
was called to work on only the brakes and not the gaskets. Id. Additionally, MNRM
proffers evidence—which Ms. Finch did not dispute—that it supplied only a small
number of asbestos-containing gaskets to the tire plant compared to the total number of
gaskets used there, Doc. 289-3 at 10, and that its gaskets were internal to the machine and
not accessible to mold changers. Id. at 9.12
In short, the plaintiff has not shown that Mr. Finch was exposed to any asbestos
dust or fibers originating from gaskets that MNRM supplied, much less that such
exposure occurred with anything approaching frequency, regularity, or proximity. Ms.
Finch has not presented evidence sufficient to give rise to a disputed question of material
fact on causation.
D.

Aggregate Exposure
Even if one looks at all the alleged exposure from asbestos-containing MNRM

parts, as is almost certainly appropriate, Ms. Finch has not met the Lohrmann test or even
a reduced exposure test potentially applicable to mesothelioma cases. The seven gear
reducer units MNRM sold represented a very small proportion of the gear reducers in the

12

Ms. Finch did not cite any evidence concerning the manifold gaskets in her briefing and
she did not mention these gaskets until oral argument. See n. 8 supra. In any event, Ms. Finch
has not directed the Court’s attention to any evidence that these gaskets were ever removed from
a tire press, or if they were, that Mr. Finch was present when they were removed.
15

curing room at a particular time and there is no evidence that any maintenance was
performed on the gear reducers, much less that Mr. Finch was in the area while such
work was performed. MNRM advances undisputed evidence that the asbestos fibers in
its copper-asbestos gaskets were encapsulated and that its Transite insulators were barely
exposed and were treated so as to limit degradation. In short, on this evidence no rational
jury could conclude that Mr. Finch’s exposure to the platen insulators, gear reducers, and
gaskets sold by MNRM resulted in sufficient asbestos fiber exposure to give rise to an
inference that these components contributed meaningfully to cause his mesothelioma.
See Agner v. Daniel Intern. Corp., No 3:98-CV-220, 2007 WL 57769, at *4 (W.D.N.C.
Jan. 5, 2007) (noting that the plaintiff must prove that the “defendant’s asbestoscontaining product was a substantial factor in causing his damages”).
E.

Other Parts
There is no evidence that MNRM sold asbestos-containing heat shields, pipe

insulation, tire presses, or brakes, excepting the seven gear reducers that contained
Stearns brakes discussed supra, to the Wilson tire plant. MNRM cannot be liable for
products that it did not supply or that did not contain asbestos.
As to the heat shields, MNRM produced evidence that its replacement heat shields
did not contain asbestos. E.g., Doc. 289-3 at 13. Ms. Finch did not address this evidence
in her opposition brief and it is thus uncontroverted for purposes of this motion. See
Catalan, 17 F. Supp. 3d at 525. Similarly, MNRM proffers evidence that none of the tire
presses it sold to the tire plant contained asbestos. Doc. 289-3 at 9. Ms. Finch does not

16

dispute this evidence and did not contend that Mr. Finch was exposed to asbestos from an
MNRM press.
For the pipe insulation, MNRM proffers evidence that it did not supply any pipe
insulation to the Wilson tire plant. At oral argument, Ms. Finch conceded that “there are
no records showing [sales of pipe insulation] to Firestone Wilson.” Transcript of Oral
Argument at 28, Finch v. BASF Catalysts LLC, No. 16-CV-1077 (July 30, 2018).
Finally, there is no evidence that MNRM sold any replacement brakes or replacement
brake parts, other than the seven gear reducers that had Stearns brakes. Doc. 321 -4 at 3–
4; Doc. 289-3 at 13–14.
Ms. Finch offers other circumstantial evidence that MNRM’s products contained
asbestos into the mid-1980s. E.g., Doc. 307-5 at 29 (referencing Doc. 307-19) and Doc.
307-19 (indicating, in 1986, that MNRM was still trying to determine what asbestos
products remained so that it could purge them from its warehouse); see also Doc. 289-3
at 5 (summarizing testimony of former MNRM engineer asserting that MNRN “began”
substituting asbestos-free parts for asbestos-containing AC parts “prior to” 1982 and
“likely” did not sell asbestos products after 1982, but “definitely not” after 1985). This
non-specific evidence is insufficient to show that MNRM sold other asbestos-containing
parts to the plant or that Mr. Finch was exposed to asbestos fibers from such parts.
F.

Spoliation

Without evidence to show that MNRM supplied asbestos-containing parts that
resulted in frequent and proximate exposure to Mr. Finch, Ms. Finch seeks a spoliation
adverse inference to stave off summary judgment. A party seeking such sanctions must
17

establish that the alleged spoliator had a duty to preserve evidence and that it thereafter
destroyed relevant evidence. Turner v. United States, 736 F.3d 274, 281–82 (4th Cir.
2013).13
Ms. Finch’s cursory spoliation argument has not met this burden. Simply saying
that MNRM spoliated evidence does not make it so. Statements in a brief are not
evidence. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1358 (4th Cir. 1995) (holding
jury was properly instructed that counsel’s statements are not evidence); Skyline Corp. v.
NLRB, 613 F.2d 1328, 1337 (5th Cir. 1980) (“Statements by counsel in briefs are not
evidence.”). Nor has she specifically directed the Court’s attention to evidence that
MNRM destroyed sales records.14
Even assuming that MNRM did destroy some records, Ms. Finch has not put
forward any evidence that MNRM had a duty to retain these particular records at the time
they were destroyed. The evidence that Ms. Finch cites, Doc. 307-14 and Doc. 307-23,
show no more than a generalized concern about possible litigation and is not sufficient to
trigger a company-wide duty to preserve evidence. See Realnetworks, Inc. v. DVD Copy

13

To obtain an adverse inference based on spoliation of evidence, Ms. Finch must establish
that: (1) MNRM had a duty to preserve the evidence; (2) MNRM destroyed evidence that would
have been relevant to her claims; and (3) MNRM “willfully” destroyed the evidence. Turner,
736 F.3d at 281–82. As the moving party, Ms. Finch has the burden of proof. Id. at 282.
“Spoliation is a rule of evidence” and the decision to impose sanctions for violations rests within
the sound discretion of the trial court. Id. at 281.
The only evidence Ms. Finch submits is a letter from a lawyer for MNRM’s predecessor
stating that “parts and service records prior to 1982 cannot be retrieved.” Doc. 307-11. This is a
far cry from establishing that MNRM or its predecessor affirmatively destroyed documents. And
of course there are sales invoices in this case from before 1982, see, e.g., Doc. 289-3 at 7–8,
indicating that not all such documents were destroyed.
14

18

Control Ass’n, 264 F.R.D. 517, 526 (N.D. Cal. 2009) (“A general concern over litigation
does not trigger a duty to preserve evidence.”). Absent a duty to retain destroyed records,
there can be no spoliation.
IV.

Motion to Strike
MNRM moves to strike Red Seal’s Responses to Plaintiff’s Deposition by Written

Questions for violating this Court’s scheduling order. Doc. 322. To the extent that the
answers simply authenticate documents, the motion will be denied. The documents were
used during depositions and MNRM has shown no prejudice.
Beyond this, MNRM’s motion to strike will be granted. The Court’s Amended
Scheduling Order required that “[a]ll discovery must be completed by April 2, 2018.”
Doc. 144 at 1. Ms. Finch served defendant Red Seal a Deposition Upon Written
Questions on April 4, 2018, two days after the discovery deadline. Red Seal did not
respond until May 4, 2018, some 30 days after the close of discovery and two days after
MNRM submitted its motion for summary judgment. Conducting a deposition after the
discovery deadline contravened this Court’s scheduling order. Doc. 48 (requiring that all
“depositions . . . must be taken during the discovery period” absent Court approval). Ms.
Finch did not move for an extension of the discovery deadline before—or after—serving
the written questions on Red Seal. She has offered no reason for her violation of the
Court’s scheduling order. Striking this evidence is appropriate.15

15

Even if this evidence were considered, it would not change the outcome of the pending
motion.
19

CONCLUSION
MNRM has put forth evidence that Mr. Finch was not regularly, frequently, or
proximately exposed to asbestos from products sold by MNRM and thus that his
mesothelioma could not have been caused by its negligence in selling these products.
Ms. Finch has not put forward sufficient evidence to create a disputed question of
material fact on exposure and causation. No reasonable jury could find that MNRM’s
products caused Mr. Finch’s mesothelioma. Summary judgment in favor of MNRM is
proper.
It is ORDERED that the defendant McNeil & NRM’s motion to strike, Doc. 322,
is GRANTED. It is FURTHER ORDERED that the defendant McNeil &NRM’s
motion for summary judgment, Doc. 288, is GRANTED.
This the 22nd day of August, 2018.

__________________________________
UNITED STATES DISTRICT JUDGE

20