CONNOR v. NORFOLK SOUTHERN RAILWAY COMPANY et al

Filing 235

MEMORANDUM OPINION AND ORDER GRANTING 193 Covil Corporation's Motion for Summary Judgment; GRANTING 195 Daniel International Corporation's Motion for Summary Judgment; DENYING AS MOOT 201 Motion in Limine; DENYING AS MOOT 202 Motion in Limine. Signed by JUDGE LORETTA C. BIGGS on 12/11/2018.(Samuel-Priestley, Tina)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DARRELL A. CONNOR, Individually and as
Executrix of the Estate of CHARLES FRANKLIN
CONNOR, Deceased,
Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY COMPANY,
et al.
Defendants.

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1:17CV127

MEMORANDUM OPINION AND ORDER
LORETTA C. BIGGS, District Judge.
Plaintiff, individually and as executrix of the estate of Charles Franklin Connor,
initiated this wrongful death action. (ECF No. 98.) Before the Court are the following
motions: (i) Motion for Summary Judgment, filed by Defendant Covil Corporation (“Covil”),
(ECF No. 193); (ii) Defendant Daniel International Corporation’s (“Daniel International”)
Motion for Summary Judgment, (ECF No. 195); and (iii) two Daubert 1 motions, filed by Covil
and Daniel International, to exclude the causation testimony of Plaintiff’s experts, Edwin
Holstein, M.D., Brent Staggs, M.D., and Arnold Brody, Ph.D., (ECF Nos. 201, 202). 2 For the

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Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

Plaintiff originally named a number of defendants in this action, all of which have either settled with
Plaintiff or have been dismissed, except Covil Corporation and Daniel International Corporation. On
December 7, 2018, counsel for Plaintiff notified the Court of settlement as to Defendant Norfolk
Southern Railway Co. (See 12/7/2018 Docket Entry Text.) Therefore, the Court will only address
the motions filed by Covil and Daniel International.

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reasons set forth below, the Court will grant the summary judgment motions filed by Covil
and Daniel International, and the remaining motions will be denied as moot.
I.

BACKGROUND
Charles Franklin Connor (“Mr. Connor”) was diagnosed with mesothelioma on

October 12, 2016 and died on June 11, 2017. (ECF No. 98 ¶¶ 2, 32, 33; ECF No. 208-3 at
17, 22.) The Complaint 3 alleges, in relevant part, that Mr. Connor was “exposed to various
asbestos-containing products while employed at Fiber Industries (a/k/a/ Hoechst Celanese)
in Salisbury, North Carolina from approximately 1966 until 1982.” (ECF No. 98 ¶¶ 2, 38.)
According to the Complaint, over the course of his employment at Fiber Industries, Mr.
Connor “worked with, or in close proximity to others who worked with, asbestos-containing
materials including but not limited to asbestos pipe covering, gaskets, turbines, boilers, and
other asbestos-containing materials.” (Id. ¶ 2.)
The Complaint alleges the following five causes of action against Daniel International,
which built the Fiber Industries facility, (ECF No. 194-6 at 6), and Covil, which supplied
insulation to Daniel International, (see ECF No. 208-5 at 33, 38): (i) negligent failure to warn—
defective design, (ECF No. 98 ¶¶ 49–69); (ii) breach of implied warranty, (id. ¶¶ 70–74);
(iii) gross negligence—willful, wanton, and reckless conduct, (id. ¶¶ 75–83); (iv) failure to warn,
(id. ¶¶ 84–89); and (v) premises liability, negligence, gross negligence, and malice, (id. ¶¶ 90–
98). Plaintiff’s Complaint also includes a claim for punitive damages. (Id. ¶¶ 104–109.) Covil

References to the “Complaint” refer to the First Amended Civil Action Complaint, (ECF No. 98),
which is the operative complaint.

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and Daniel International each move for summary judgment against Plaintiff on causation
grounds. (See ECF Nos. 193, 195.)
II.

STANDARD OF REVIEW
Summary judgment is appropriate when “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). A dispute is “genuine” if the evidence would permit a reasonable jury to find
for the nonmoving party, and “[a] fact is material if it might affect the outcome” of the
litigation. Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal
quotation marks omitted). The role of the court is not “to weigh the evidence and determine
the truth of the matter” but rather “to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). When reviewing a motion for summary
judgment, the court must view the evidence and “resolve all factual disputes and any
competing, rational inferences in the light most favorable” to the nonmoving party. Rossignol
v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v. Springfield Terminal Ry. Co.,
100 F.3d 228, 230 (1st Cir. 1996)).
In cases where the nonmovant will bear the burden of proof at trial, the party seeking
summary judgment bears the initial burden of “pointing out to the district court . . . that there
is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986). If the moving party carries this burden, then the burden shifts to the
nonmoving party to point out “specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ.
P. 56(e) (emphasis omitted)). In so doing, “the nonmoving party must rely on more than

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conclusory allegations, mere speculation, the building of one inference upon another, or the
mere existence of a scintilla of evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir.
2013). The nonmoving party must support its assertions by citing to particular parts of the
record, or by showing that the materials cited do not establish the absence of a genuine dispute.
Fed. R. Civ. P. 56(c)(1); see Celotex, 477 U.S. at 324. The judicial inquiry on summary judgment
“thus scrutinizes the plaintiff’s case to determine whether the plaintiff has proffered sufficient
proof, in the form of admissible evidence, that could carry the burden of proof of his claim at
trial.” Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993).
III.

DISCUSSION
Covil argues that it is entitled to summary judgment on all claims because “Plaintiff

cannot prove the essential element of causation to support his claims against Covil.” (ECF
No. 194 at 12.) Covil contends that “Plaintiff has failed to present evidence that Mr. Connor
was exposed to any asbestos-containing product for which Covil was legally responsible, much
less that Mr. Connor had frequent, regular, and proximate exposure to such products.” (Id. at
14–15.) Similarly, Daniel International moves for summary judgment against Plaintiff “on the
ground that there is insufficient evidence that it exposed Mr. Connor to asbestos” under the
frequency, regularity, and proximity test set forth in Lohrmann v. Pittsburgh Corning Corp., 782
F.2d 1156 (4th Cir. 1986). (ECF No. 195 at 1.) In response to each motion, Plaintiff argues
that he has provided sufficient evidence of the frequency, regularity, and proximity of Mr.
Connor’s exposure to asbestos insulation supplied by Covil, and installed and removed by
Daniel International, at Fiber Industries to demonstrate actual exposure. (ECF No. 207 at 21;
ECF No. 208 at 17.) Plaintiff further argues that based on the evidence, “a jury [would]

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conclude that this exposure was a substantial factor in causing [Mr. Connor’s] disease.” (ECF
No. 207 at 21; ECF No. 208 at 17.) 4
A.

North Carolina Law of Causation in Asbestos Cases

Under North Carolina law, a plaintiff bringing an action arising from asbestos exposure
must forecast evidence showing actual exposure to the alleged offending products to survive
summary judgment. Wilder v. Amatex Corp., 336 S.E.2d 66, 67–68 (N.C. 1985). The Fourth
Circuit has concluded that North Carolina law requires “the plaintiff in a personal injury
asbestos case ‘[to] prove more than a casual or minimum contact with the product’ containing
asbestos in order to hold [the defendant] liable.” Jones v. Owens-Corning Fiberglas Corp., 69 F.3d
712, 716 & n.2 (4th Cir. 1995) (quoting Lohrmann, 782 F.2d at 1162)). Rather, a plaintiff in
such a case must satisfy the “frequency, regularity and proximity” test, which requires the
plaintiff to introduce “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.” Lohrmann, 782
F.2d at 1162–63 (holding evidence of exposure to an asbestos-containing product “on ten to
fifteen occasions of between one and eight hours duration” insufficient to hold the product’s
manufacturer liable). See also Pace v. Air & Liquid Sys. Corp., 642 F. App’x 244, 247 (4th Cir.
2016) (terming the above-described test adopted in Lohrmann the “frequency, regularity, and
proximity” test”). 5
Plaintiff states, in a footnote in his response to Covil’s motion, that he “is not opposing partial
summary judgment on [his] claims for premises liability and design defect.” (ECF No. 208 at 2 n.2.)

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Plaintiff appears to argue that a different causation standard applies in cases involving mesothelioma
present. (ECF No. 207 at 14–18; 208 at 14–16.) Plaintiff contends that “courts that have applied the
Lohrmann test in mesothelioma cases have found that relatively brief exposures are sufficient to satisfy
the Lohrmann factors.” (ECF No. 207 at 16; ECF No. 208 at 15.) In support of this assertion, Plaintiff
cites a number of state and circuit court cases. (See ECF No. 207 at 16–17 (citing cases); ECF No.
5

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B.

Evidence Relevant to Motions for Summary Judgment filed by Covil and
Daniel International

The evidence in the record shows that, in 1965, Daniel International built Fiber
Industries, a polyester production plant in Salisbury, North Carolina. (ECF No. 194-6 at 6;
ECF No. 208-3 at 7–8.) Fiber Industries was a “large plant,” spanning approximately 20 acres
and employing over 1,000 people. (ECF No. 208-3 at 7.) The facility was comprised of several
buildings including a multi-level main building which housed, among other things, the facility’s
main production plant. (See ECF No. 208-2 at 4, 14–16, 22.)
Daniel International “had a contract to buy [insulation] through Covil,” which, at the
time, served as its main supplier of insulation. (ECF No. 208-5 at 38; see ECF No. 208-7 at
25; ECF No. 208-9 at 55; ECF No. 208-10 at 2–45.) During construction, Daniel International
and its subcontractors installed insulation throughout the Fiber Industries facility. (ECF No.
208-7 at 7, 21.) Some of the insulation installed throughout the facility—particularly insulation
for “high-temperature piping”—contained asbestos. (See ECF No. 208-7 at 6.) Other types
of insulation, including “fiberglass insulation, cork, [and] rubber,” were also installed
throughout the facility. (ECF No. 208-2 at 21.)

208 at 15 (citing cases).) None of these cases cited by Plaintiff, however, were decided by North
Carolina state courts; nor were any of the cases cited decided by North Carolina federal courts or the
Fourth Circuit interpreting North Carolina law. In fact, federal courts in North Carolina have
routinely applied Lohrmann’s “frequency, regularity, and proximity” test to evaluate proximate
causation in asbestos cases, including those involving mesothelioma, arising under North Carolina
law. See, e.g., Finch v. BASF Catalysts LLC, No. 1:16-CV-1077, 2018 WL 4101828, at *1, *4 (M.D.N.C.
Aug. 22, 2018); Starnes v. A.O. Smith Corp., No. 1:12–CV–360–MR–DLH, 2014 WL 4744782, at *1, *3
(W.D.N.C. Sept. 23, 2014); Logan v. Air Prods. & Chems., Inc., No. 1:12-CV-1353, 2014 WL 3891366,
at *2, *4–*5 (M.D.N.C. Aug. 7, 2014). Thus, the Court finds no merit in Plaintiff’s argument that, in
cases involving mesothelioma, it should apply a different or less onerous causation standard than that
articulated in Lohrmann.
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Following construction of the facility, many Daniel International employees remained
on-site to perform ongoing maintenance and repair tasks throughout the facility. (See ECF
No. 194-6 at 6; ECF No. 208-6 ¶ 13.) Among their tasks, Daniel International employees
routinely removed and replaced asbestos insulation from piping and other equipment. (ECF
No. 208-6 ¶¶ 22–23.) To do so,
Daniel [International] insulators would tear the old
insulation off of the pipes by using hammers and saws to
knock and break it off. The old insulation would crack,
break apart, crumble and fall to the floor, spreading
dust. . . . The dust would float out across the work areas
of the plant. Sometimes there was tape, wood or
polyethylene used to separate off the Daniel
[International] work areas but it did not always block the
dust.
(ECF No. 208-6 ¶ 23; see ECF No. 208-5 at 40.)
C.

Covil’s Motion for Summary Judgment

In support of its motion, Covil first argues that “there is no evidence that [asbestoscontaining] products [at Fiber Industries] were provided by Covil.” (ECF No. 194 at 16.) The
Court disagrees. As stated above, the record reflects that Covil supplied asbestos-containing
insulation to Daniel International which was installed at Fiber Industries, at least from 1965
to 1973. Specifically, invoices dated 1965 through 1971 show that Covil sent shipments of
insulation material which were addressed to Daniel International, “c/o Fiber Industries.” (See
ECF No. 208-10 at 2–45.) In addition, Jerry Hicks, a Daniel International employee from
1964–1979, testified that, in his role as a general foreman at the Fiber Industries facility, he

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ordered 6 insulation material from Covil because Daniel International “had a contract to buy
[insulation] through Covil.” (ECF No. 208-5 at 7, 31–32, 38, 72.) Mr. Hicks further testified
that some of the insulation was packaged in boxes which bore labels stating: “This product
contains asbestos.” (Id. at 34.) Daniel International ended its practice of purchasing asbestoscontaining insulation in 1973, yet its employees were permitted “to use up what [asbestos
insulation they] had on hand” until 1975. 7 (Id. at 35–36; see ECF No. 208-7 at 48.) In 1975,
Daniel International ceased all installation of asbestos-containing insulation at Fiber
Industries. (ECF No. 208-5 at 36–37.) This evidence thus establishes that Covil provided
asbestos-containing insulation which was used at Fiber Industries, at least from 1965–1973.
The Court further finds, however, that there is insufficient evidence from which a jury
could find that Mr. Connor was exposed to asbestos fibers from Covil-supplied insulation on
a frequent and regular basis in close proximity to where he worked. Plaintiff argues that Mr.
Connor “was exposed to asbestos insulation supplied by Covil for Daniel [International’s] use
at Fiber Industries.” (ECF No. 208 at 17.) Specifically, Plaintiff contends that Mr. Connor
“was in areas of the plant where Daniel [International] was working with asbestos insulation,”
and that Mr. Connor “continued to experience exposure to Covil-supplied insulation every
time it was removed thereafter.” (ECF No. 208 at 16, 17.) Indeed, a bystander may maintain
a cause of action for asbestos exposure where the evidence, albeit circumstantial, shows

Mr. Hicks testified that “either [h]e or somebody that was working for [him]” ordered insulation on
behalf of Daniel International for use and storage at the Fiber Industries facility. (ECF No. 208-5 at
32.)

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Daniel International employees stored the insulation that had been ordered “on the mezzanine
floor,” in a “big area” at Fiber Industries. (ECF No. 208-5 at 33.)
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“proximate and significant” exposure. Finch v. BASF Catalysts LLC, No. 1:16-CV-1077, 2018
WL 4101828, at *4 (M.D.N.C. Aug. 22, 2018) (citing Roehling v. Nat’l Gypsum Co. Gold Bond
Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir. 1986)). The record in this case, however, fails to
sufficiently demonstrate any such exposure.
As evidence of Mr. Connor’s actual asbestos exposure, Plaintiff relies on his deposition
testimony, as well as the deposition testimony of Mr. Connor and Troy Witherspoon
(“Witherspoon”). (See ECF No. 208 at 2–4.) As previously stated, Mr. Connor was employed
at Fiber Industries from 1966 to 1982. (ECF No. 194-3 at 19.) He was initially hired to work
in production in the beaming department. 8 (Id.)

Approximately four or five months

thereafter, Mr. Connor was promoted to training and development supervisor, a position he
held for most of his 16-year tenure at Fiber Industries. (ECF No. 194-3 at 19; ECF No. 2081 at 13–14, 28.)
Mr. Connor’s office at Fiber Industries was located in “a separate building,” known as
the P building, which was approximately 200 feet from the facility’s main production building.
(ECF No. 208-1 at 14; ECF No. 208-2 at 14–15; see also ECF No. 194-4 at 10, 12.) Mr. Connor
testified that although he spent most of his time in the P building, (ECF No. 208-1 at 28), he
would regularly walk throughout the plant to monitor the training operators and other
employees whom he supervised. (Id. at 14, 28; ECF No. 208-3 at 14–15.)
With respect to his daily schedule, Mr. Connor testified that he would routinely report
to his office in the P building when he arrived at work and “follow[ ] up on some paperwork.”

“The beaming department is where the synthetic fibers were wound onto large ‘beams’ or spools for
shipment” for use in products, such as tire cords. (ECF No. 194-3 at 19; see also ECF No. 194-4 at 4.)
8

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(ECF No. 208-1 at 29.) He would then “get out in the [plant to] see what [was] going on.”
(Id.) Mr. Connor testified that some days he “would make a couple passes . . . through the
area,” while other days he would not do so, as “[i]t’s a pretty big plant.” (Id.)
Further, with respect to Daniel International’s repair work performed throughout the
facility, Mr. Connor testified as follows:
Q. Now, so you would give Daniel crews permission to
do . . . repair work. And . . . did you watch Daniel
[employees] do that work or did you move on?
A. No. Well, I would see back and forth, you know,
because like I said, it is a pretty wide—big area. So I
would see them several times a day. But no, I didn’t stand
and watch them.
(Id.) In addition, when discussing his knowledge of the presence of asbestos in his work area
at Fiber Industries, Mr. Connor’s testimony is as follows:
Q. . . . Did you ever work in an area where you had
asbestos, where you were wearing one of these masks, to
your knowledge?
A. No. No, I didn’t have to because I was in the training
department for the last 16 and a half years. And training,
it was just as clean as your home.
(Id. at 35.) This testimony undermines Plaintiff’s claims that Mr. Connor was actually exposed
to asbestos during Daniel International’s work with Covil-supplied asbestos insulation at Fiber
Industries.
Next, as to Witherspoon’s deposition testimony regarding Mr. Connor’s asbestos
exposure, the Court finds this evidence speculative, at best. Witherspoon was employed at
Fiber Industries from 1968 to 1982. (ECF No. 208-2 at 4.) He began his career at Fiber
Industries as a production worker in the filament department before becoming a training
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instructor in 1970, at which time he met Mr. Connor. (Id. at 3–4.) Witherspoon testified that,
although he worked in a different department, he saw Mr. Connor “virtually every day,
Monday through Friday.” (Id. at 4.)
When asked whether Mr. Connor was “around Daniel [International]’s employees who
were removing and installing insulation material between 1970 and 1982,” Witherspoon
responded:
I think so. . . . I think it’s something both of us would have
been out in the area at the same time and did see them
doing this. . . . It would have been impossible for [Mr.
Connor] to do his job without being out in the [main
production] area. . . . He would have had to have been in the
area.
(ECF No. 208-2 at 7–8 (emphasis added).) Elsewhere in Witherspoon’s deposition, he
attempts to provide more definitive testimony about having observed Mr. Connor “once to
three times a week” within a couple feet of where Daniel International’s employees were
working. (Id. at 7.) However, when pressed, Witherspoon admits that his recollection of Mr.
Connor’s whereabouts in the facility during that period is based on his (Witherspoon’s)
experience performing a job function similar to that of Mr. Connor.
Q. [I]s your statement here about [Mr. Connor] being
around Daniel insulators . . . based on your experience
doing a similar type of job?
A. Yes.
(Id. at 7.)
In addition, when asked whether Mr. Connor “actually supervised the actual
maintenance work that the Daniel [International] folks were doing,” Witherspoon responded:
“No. As far as . . . supervising them, no, because they didn’t work for him.” (Id. at 20.)
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Witherspoon also testified that he was aware that the facility contained both asbestos and
asbestos-free insulation, and he further admitted that he was unable to discern the difference
“simply by looking at some [employee]” working with the insulation. (Id. at 21.)
Witherspoon did testify that Mr. Connor “observed” Daniel International employees
“to ensure that his product was being produced,” yet he could not provide any details specific
to Mr. Connor, stating: “I can’t give you a specific time, day, or nothing like that. . . . It could
have been in any of the buildings.” (Id. at 20.) Such testimony by Witherspoon is simply too
vague and speculative to satisfy Plaintiff’s burden of demonstrating that Mr. Connor was
actually exposed to Covil-supplied asbestos insulation used by Daniel International employees.
See Pace, 642 F. App’x at 249 (finding the testimony of decedent’s coworker that decedent
worked on defendant’s asbestos-laden pumps “a lot” to be speculative); Hill v. Michelin N. Am.,
Inc., 252 F.3d 307, 315 n.3 (4th Cir. 2001) (holding “vague” deposition testimony “insufficient
to create a genuine issue of material fact”).
Plaintiff also cites his own deposition testimony as evidence of Mr. Connor’s actual
asbestos exposure. (See ECF No. 208 at 4.) Plaintiff is Mr. Connor’s eldest son, and he was
employed at Fiber Industries from 1968–1974. (ECF No. 208-3 at 3, 5.) Plaintiff argues that
his testimony establishes that Mr. Connor’s “responsibilities as a trainer took him to every part
of the plant,” (ECF No. 208 at 4.) Indeed, Plaintiff testified that he would see his father at
“[d]ifferent places” in the facility—sometimes in Mr. Connor’s office and, other times, as he
was walking down the facility’s hallways. (ECF No. 208-3 at 14, 15.) Yet, his testimony
included no information about having observed Mr. Connor around Daniel International
employees as they removed and installed insulation material which may have contained

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asbestos. Further, when asked whether he ever saw his father in a situation where he believed
his father “was being exposed to asbestos at the plant,” Plaintiff responded: “I don’t know
that.” (Id. at 15.)
Plaintiff also cites the deposition testimony of Daniel International employees Gary
Albright, Jerry Lee Hicks, and Paul Ogburn to establish that Daniel International employees
were exposed to asbestos at Fiber Industries. (ECF No. 208 at 4–7.) While such evidence
may establish that Daniel International employees who were responsible for installing,
repairing, and replacing insulation may have, themselves, been exposed to asbestos, it does
not, however, demonstrate that Mr. Connor—who was not responsible for handling
insulation, and whose office where he spent most of his time was located in a separate building,
approximately 200 feet from the main production plant—was routinely present during Daniel
International employees’ handling of Covil-supplied asbestos insulation.
Plaintiff nonetheless argues that his “evidence shows that [Mr. Connor] was in areas of
the plant where Daniel [International] was working with asbestos insulation,” and it has
therefore satisfied the Lohrmann test.

(ECF No. 208 at 16–17.)

Plaintiff seemingly

misapprehends its burden under Lohrmann. As articulated by the Fourth Circuit in Lohrmann,
“the mere proof that the plaintiff and a certain asbestos product are at the [same location] at
the same time, without more, does not prove exposure to that product.” 782 F.2d at 1162.
Plaintiff also argues that “[t]he circumstantial evidence in this case is remarkably similar
to” that in the following circuit court opinions: Jones v. Owens-Corning Fiberglass Corp., 69 F.3d
712 (4th Cir. 1995), Roehling v. National Gypsum Co. Gold Bond Building Products, 786 F.2d 1225
(4th Cir. 1986), and Slaughter v. Southern Talc Co., 949 F.2d 167 (5th Cir. 1991). (ECF No. 208

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at 16.) In each of those cases the court found sufficient evidence of causation under Lohrmann.
See, e.g., Jones, 69 F.3d at 716 (affirming district court’s entry of summary judgment against an
asbestos manufacturer where the record “consist[ed] of direct evidence that establishe[d] that
[plaintiffs] were exposed to asbestos dust on a daily basis, and more specifically to [the asbestos
containing products] on a regular basis, for approximately 20 years” (internal quotation marks
omitted)); Slaughter, 949 F.2d at 170, 171, 173 (finding circumstantial proof of plaintiffs’
exposure sufficient to withstand summary judgment in favor of manufacturer where the
evidence showed, in part, that pipe insulation was removed and replaced throughout the plant
on a daily basis; that insulation dust would regularly cover the workers in the area when pipe
insulation was repaired; and that the plant “was a very dirty place to be”; Roehling, 786 F.2d at
1228 (finding sufficient evidence that the bystander plaintiff “was exposed to defendants’
[asbestos-containing] products” where the evidence showed that the plaintiff “worked in the
same limited area of the plant, at the same time, as the witnesses” who handled asbestoscontaining materials). Unlike the evidence in those cases, the record here does not establish
that Mr. Connor was exposed to asbestos dust on a regular basis over a period of time, nor
that Mr. Connor regularly worked in a limited area near the Daniel International employees
who routinely installed, removed and repaired asbestos-containing insulation. In fact, as set
forth above, although Mr. Connor would, at times, pass through different areas of the plant,
(ECF No. 208-1 at 29), he spent most of his time in the P building where his office was located,
(id. at 28). Further, according to Mr. Connor, his training department “was just as clean as
your home.” (Id. at 35.)

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In sum, the evidence, viewed in the light most favorable to Plaintiff, fails to establish
that Mr. Connor was actually exposed to asbestos-containing insulation supplied by Covil “on
a regular basis over some extended period of time in proximity to where [he] actually worked.”
Lohrmann, 782 F.2d at 1162–63. The Court, therefore, concludes that Plaintiff’s evidence is
insufficient to support an inference that Mr. Connor’s harm was caused by asbestos insulation
supplied by Covil. Accordingly, Covil is entitled to judgment as a matter of law on all of
Plaintiff’s claims against it.
D.

Daniel International’s Motion for Summary Judgment

Daniel International argues that the evidence fails to establish causation. (ECF No.
195 at 1.) Specifically, Daniel International contends that “Mr. Connor himself was unable to
affirmatively state that he was actually exposed to asbestos by Daniel [International],” and
further, that “the co-worker testimony is insufficient to establish exposure to asbestos from
Daniel [International] with the sufficient frequency, regularity, and proximity.” (ECF No. 196
at 10 (internal quotation marks).)
As with his response to Covil’s causation argument, here, Plaintiff likewise points to
the co-worker testimony of Witherspoon, as well as his own testimony. (ECF No. 207 at 24.) Plaintiff argues that “Witherspoon establishes that [Mr. Connor] was around Daniel
[International] insulators as they removed and installed insulation.” (ECF No. 207 at 3.)
However, for the same reasons discussed above with respect to Covil’s summary judgment
motion, the Court concludes that Witherspoon’s testimony is speculative and therefore fails
to create a triable issue concerning Mr. Connor’s asbestos exposure. (See supra at 10–12.) With
respect to Plaintiff’s testimony, while Plaintiff testified that Mr. Connor’s responsibilities took

15

him to “every part of the plant,” (ECF No. 208-3 at 15), as previously discussed, such
testimony lacked any information about having observed Mr. Connor around Daniel
International employees as they worked with asbestos-containing insulation. Further, when
asked whether he ever saw his father in a situation where he believed he “was being exposed
to asbestos at the plant,” Plaintiff responded: “I don’t know that.” (Id.)
Here again, as with its response to Covil’s motion, Plaintiff further relies on the
testimony of Gary Albright, Jerry Lee Hicks, and Paul Ogburn. (ECF No. 207 at 4–7.) These
individuals testified that asbestos insulation was used at Fiber Industries, and that Daniel
International employees were exposed to asbestos as they removed and replaced asbestos
insulation causing visible asbestos dust within a few feet of other workers. (See ECF No. 2084 at 9–10; ECF No. 208-5 at 40; ECF No. 208-6 ¶ 23.) However, as discussed above, while
this evidence may create a triable issue as to the asbestos exposure of Daniel International
employees, the record is devoid of evidence showing that Mr. Connor was present at the time
that Daniel International employees were engaged in installing, removing, or replacing
asbestos insulation. 9
Based on the above, the Court finds that Plaintiff has failed to demonstrate that there
is a genuine dispute as to Mr. Connor’s asbestos exposure, attributable to Daniel International,

Daniel International also contends that “[t]he lack of evidence as to whether the insulation contained
asbestos is fatal” to Plaintiff’s claims. (ECF No. 196 at 11.) However, drawing all reasonable
inferences in Plaintiff’s favor, the Court concludes that the evidence does establish that at least some
of the insulation at Fiber Industries likely contained asbestos. Yet, as discussed above, the evidence
is speculative, at best, with respect to whether Mr. Connor was in or around areas in the plant at the
time that Daniel International employees were installing, removing, or replacing asbestos-containing
insulation.

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such that a jury could find in favor of Plaintiff. As such, Daniel International is entitled to
summary judgment on all claims.
IV.

CONCLUSION
The Court concludes that Plaintiff has failed to introduce evidence of Mr. Connor’s

exposure to an asbestos-containing product, for which Covil and Daniel International are
liable, “over some extended period of time in proximity to where [Mr. Connor] actually
worked.” Lohrmann, 782 F.2d at 1162–63. Plaintiff has thus failed to establish causation as to
Covil and Daniel International, each of which are therefore entitled to judgment as a matter
of law on all of Plaintiff’s claims against them. Accordingly, the two remaining Daubert
motions, filed by Covil and Daniel International, to exclude the causation testimony of
Plaintiff’s experts, Edwin Holstein, M.D., Brent Staggs, M.D., and Arnold Brody, Ph.D., (ECF
Nos. 201, 202), are denied as moot.

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For the reasons stated herein, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Covil Corporation’s Motion for Summary
Judgment, (ECF No. 193), is GRANTED.
IT IS FURTHER ORDERED that Daniel International’s Motion for Summary
Judgment, (ECF No. 195), is GRANTED.
IT IS FURTHER ORDERED that the following two motions are DENIED AS
MOOT: Daubert Motion of Defendants Daniel International Corporation to Exclude
Causation Testimony of Plaintiff’s Experts Edwin Holstein, M.D., Brent Staggs, M.D., and
Arnold Brody, Ph.D., (ECF No. 201), and Defendants’ Joint Motion to Limit or Exclude
Causation Testimony of Plaintiff’s Experts Edwin Holstein, M.D., Brent Staggs, M.D., and
Arnold Brody, Ph.D., (ECF No. 202).
This, the 11th day of December, 2018.

/s/ Loretta C. Biggs
United States District Judge

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