Sparkman v. A W Chesterton Company et al
ORDER granting 106 Motion for Summary Judgment; granting 117 Motion to Strike Signed by Honorable David C Norton on 12/29/14.(akob, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
TERENCE J. SPARKMAN AND
LEONARD SPARKMAN, personal
representatives of the estate of ELIJAH
SPARKMAN, JR., deceased,
A.W. CHESTERTON COMPANY;
FOSTER WHEELER ENERGY CORP.;
GOULDS PUMPS, INC.;
INC. n/k/a AWT AIR COMPANY, INC;
RILEY POWER, INC.; UNIROYAL, INC., )
This matter is before the court on defendant Foster Wheeler Energy Corp.’s
(“Foster Wheeler”) motion for summary judgment and motion to strike. For the reasons
set forth below, the court grants both motions.
From 1954 to 2000, decedent Elijah J. Sparkman (“Sparkman”) was employed in
various capacities at Westvaco Pulp and Paper Mill (“Westvaco”) in North Charleston,
South Carolina, including as a laborer, boiler operator, evaporator operator, and
precipitator operator. Pls.’ Resp. to Foster Wheeler’s Mot. Summ. J. 1-2. Sparkman was
diagnosed with mesothelioma and died of this disease on October 20, 2012. Id. at 2.
Plaintiffs Terence J. Sparkman and Leonard Sparkman (“plaintiffs”) allege Sparkman’s
mesothelioma resulted from a prolonged exposure to asbestos while employed at
Westvaco. Id. Relevant to these motions, plaintiffs allege that Sparkman was exposed to
asbestos from Foster Wheeler’s asbestos-containing boilers while employed at Westvaco.
Id. at 1. Their expert in this matter, Dr. Richard Kradin, has opined to a reasonable
degree of medical certainty that Sparkman’s malignant mesothelioma was caused by
cumulative exposure to asbestos from his work at Westvaco, including his work with and
around asbestos-containing boilers. Id. at 2.
Although Sparkman passed away before he could be deposed in this matter, his
coworkers have provided testimony as to how his job duties at Westvaco allegedly
exposed him to asbestos. Id. Taken in the light most favorable to the non-moving party,
as required on a motion for summary judgment, their testimony presents the following
Richard Mizzell (“Mizzell”) testified that while he was employed as a boiler
operator at Westvaco from 1976 to 1977, he had occasion to work with Sparkman while
Sparkman also worked as a boiler operator on boiler numbers 8 and 9. Id. at 43:3-21. As
a boiler operator at Westvaco, Sparkman worked around the boilers and used a six-foot
steel lance to unclog the boiler parts. Mizzell Dep. 42:22-43:8. Mizzell testified that,
while working at Westvaco, “[w]e had some Foster Wheeler boilers,” and believed Foster
Wheeler might have manufactured boiler number 8 and certain valves on that boiler. Id.
at 44:4-14, 73:11-15. Mizzell described it as a 1500 pound steam pressure boiler that was
50-feet long, 50-feet wide and six stories tall. Id. at 73:24-74:21. He testified its exterior
was surrounded by metal lagging and recalled asbestos insulation behind the metal
lagging. Id. at 75:9-21, 77:1-11. Mizzell was unsure whether the Foster Wheeler valves
he associated with boiler number 8 were insulated with asbestos. Id. at 73:3-19. He
testified that Sparkman would have had to “close the main stop valve [on this boiler]
because that was his job” and might have been exposed to asbestos then. Id. at 80:2181:9.
Fred Kessler (“Fred”) testified that for six weeks in 1979, he worked as a boiler
assistant and boiler operator on boiler numbers 6 and 7 while Sparkman worked as a
boiler operator on boiler numbers 8 and 9. Fred Dep. 81:6-23; 83:17-21. Fred thought
that both boiler numbers 8 and 9 were manufactured by Combustion Engineering. Id. at
84:17-20. He recalled that boiler number 5, which he believed to be a Murray or Riley
Stoker boiler, was full of asbestos. Id. at 45:4-12.
Lonnie Kessler (“Lonnie”), Fred’s brother, performed insulation work at
Westvaco from 1976 to 1988; he worked around Sparkman on a weekly basis during this
time. Lonnie Dep. Id. at 65:25-66:19, 67:2-5. Lonnie testified that as an insulator, he
insulated boilers with block and mud insulation. Id. at 36:2-11. Lonnie recalled that his
insulation work on boiler numbers 5, 6, and 7 created dust from the asbestos which
Sparkman would have breathed. Id. at 67:17-68:7. In addition, Lonnie testified that
Sparkman was exposed to dust when Lonnie installed and removed insulation from pipes.
Id. at 68:12-17. However, it appears Lonnie is referring to pipes that were attached to
precipitators. Id. at 35:24-36:17.
The plaintiffs have provided an affidavit from Walter Newitts, a former Foster
Wheeler employee, taken in an unrelated case.1 Pls.’ Resp. to Foster Wheeler’s Mot.
Strike 5. Newitt was employed at Foster Wheeler from approximately 1963 to 1972, and
testified that Foster Wheeler required and specified asbestos-containing insulation for use
This affidavit is at issue in Foster Wheeler’s motion to strike. See Foster Wheeler’s
with its boilers. Id. at Ex. A at ¶¶ 2, 8. He further testified that, “[m]ost often, as part of
the sale of the boiler, insulation was sold and distributed by Foster Wheeler.” Id. at ¶ 9.
On September 14, 2012, Sparkman filed a personal injury action in the Court of
Common Pleas in Charleston County, alleging claims of breach of implied warranty,
breach of post-sale duty to warn, false representation, negligence, recklessness, and strict
liability in tort. Defendants then removed the action to this court on October 12, 2012,
alleging jurisdiction based on diversity of citizenship. On April 23, 2013, following
Sparkman’s death, the plaintiffs filed an amended complaint as the legal beneficiaries of
Sparkman’s estate and added a claim for wrongful death. On September 8, 2014, Foster
Wheeler filed a motion for summary judgment, to which plaintiffs responded on
September 25, 2014. On October 1, 2014, Foster Wheeler filed a motion to strike.
Plaintiffs filed a response on October 20, 2014. The motions have been fully briefed and
are now ripe for the court’s review.
Summary judgment shall be granted “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48
(1986). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Id. at 248.
“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is,
if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to
weigh the evidence and determine the truth of the matter but to determine whether there
is a genuine issue for trial.” Anderson, 477 U.S. at 249. The court should view the
evidence in the light most favorable to the non-moving party and draw all inferences in
its favor. Id. at 255.
This case is predicated on diversity jurisdiction and was removed to federal court,
so it is governed by state substantive law and federal procedural law. Shady Grove
Orthopedic Ass’ns., P.A. v. Allstate Ins. Co., 599 U.S. 393, 417 (2010) (citing Hanna v.
Plumer, 380 U.S. 460, 465 (1965)). Because the development of the disease was the last
event necessary to give rise to a cause of action, and because the evidence indicates that
this occurred in South Carolina, South Carolina substantive law applies. See Moosally v.
W.W. Norton & Co., 594 S.E.2d 878, 888 (S.C. Ct. App. 2004) (“Until the exposure to
asbestos resulted in injury or damage, [plaintiff’s] tort cause of action did not accrue.”).
Law of Causation in Asbestos Cases
In order for a claim of workplace asbestos exposure to be actionable, the plaintiff
must establish sufficient proximate cause between the injury and exposure to asbestos
from a particular product. Henderson v. Allied Signal, Inc., 644 S.E.2d 724, 727 (S.C.
2007). The South Carolina Supreme Court has adopted the “frequency, regularity and
proximity test” set forth by the Fourth Circuit in Lohrmann v. Pittsburgh Corning Corp.,
782 F.2d 1156 (4th Cir. 1986). Henderson, 644 S.E.2d at 727. Under the Lohrmann
standard, “[t]o support a reasonable inference of substantial causation from circumstantial
evidence, there must be 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. Such circumstantial evidence may include testimony from
witnesses who were in the same vicinity as the plaintiff and who can “identify the
products causing the asbestos dust that all people in that area . . . inhaled.” Roehling v.
Nat.’l Gypsum Co. Gold Bond Bldg. Prods., 786 F.2d 1225, 1228 (4th Cir. 1986). The
mere presence of “static asbestos” does not equate to asbestos exposure. Henderson, 644
S.E.2d at 727.
Plaintiffs attempt to differentiate Lohrmann from the facts of this case and argue a
more relaxed causation standard applies. Pls.’ Resp. to Foster Wheeler’s Mot. Summ. J.
9-10. Specifically, the plaintiff in Lohrmann suffered from asbestosis, whereas
Sparkman contracted mesothelioma. Lohrmann, 782 F.2d at 1158; Pls.’ Resp. to Foster
Wheeler’s Mot. Summ. J. 8. Plaintiffs emphasize that the Seventh Circuit has applied a
lower standard for causation in mesothelioma cases because the disease “can develop
after only minor exposures to asbestos fibers.” Tragarz v. Keene Corp., 980 F.2d 411,
410 (7th Cir. 1992) (citing Wehmeier v. UNR Indus., Inc., 572 N.E.2d 320, 337 (Ill. App.
South Carolina law controls, however, and in Henderson, the South Carolina
Supreme Court expressly adopted the causation standard for exposure set forth in
Lohrmann. Henderson, 644 S.E.2d at 727. Importantly, the plaintiff in Henderson
“contracted mesothelioma and other asbestos-related illnesses.” Id. at 725. Accordingly,
the plaintiffs must follow established South Carolina precedent and satisfy the
“frequency, regularity, and proximity test.” See e.g., Fritz v. Bayer Cropscience, Inc.,
2011 WL 4828485, at *1 n.1 (E.D. Pa. Feb. 1, 2011) (noting “the Supreme Court of
South Carolina explicitly adopted the ‘frequency, regularity, and proximity test’” and
consequently applying this causation test to mesothelioma case) (citing Henderson, 644
S.E.2d at 727); Blackmon v. Owens-Illinois, Inc., 2011 WL 4790631, at *1 n.1 (E.D. Pa.
Jan. 28, 2011) (same finding)).
Foster Wheeler’s Motions
Motion to Strike
In their response to Foster Wheeler’s motion for summary judgment, plaintiffs
included an affidavit from Walter Newitts, a former Foster Wheeler employee. Pls.’
Resp. to Foster Wheeler’s Mot. Summ. J. Ex. A. Plaintiffs assert that this affidavit, taken
during unrelated litigation, evidences that “Foster Wheeler required and specified
asbestos-containing insulation for use with its boilers during the time period relevant to
this case.” Pls.’ Resp. to Foster Wheeler Mot. Summ. J. 5. Foster Wheeler argues that
the court should strike Newitts’ affidavit because, among other reasons, his statements
are irrelevant. Foster Wheeler’s Mot. Strike 6; Foster Wheeler’s Reply 3.
The most compelling reason to exclude Newitts’s affidavit is its lack of relevance.
Fed. R. Civ. P. 401. It is difficult to know what insulation Foster Wheeler specified for
boilers at Westvaco without knowing the contents of its contract with Westvaco. As the
testimony of James Egan (“Egan”) attached to plaintiffs’ response indicates, whether
Foster Wheeler supplied or specified the insulation for its boilers depended on the
individual contract. Egan Dep. 17:9-19. Newitts’s affidavit does not mention any
specific contracts Foster Wheeler had with Westvaco. In fact, the affidavit provides no
indication Newitt ever went to Westvaco or knew of any Foster Wheeler boiler
specifically at Westvaco. Furthermore, because it is unknown when the Foster Wheeler
boiler at issue was sold to Westvaco, it would be conjecture to infer that the insulation
practices of Foster Wheeler indicated in Newitts’s affidavit were in place when the boiler
was sold. Therefore, the affidavit is not relevant to the determination of the facts of this
Accordingly, the court grants Foster Wheeler’s motion to strike.
Motion for Summary Judgment
Foster Wheeler argues that summary judgment is proper because there is no
evidence that Sparkman was exposed to an asbestos-containing product placed into the
stream of commerce by Foster Wheeler. Foster Wheeler Mot. Summ. J. 1. Foster
Wheeler denies that it supplied a boiler to Westvaco, although its discovery response
indicates that it supplied a “steam generating unit,” among other equipment, to West
Virginia Pulp & Paper Company, Charleston, South Carolina. Id. at 2, Ex. A at 4.
Plaintiffs contend this is the same site as Westvaco. Pls.’ Resp. 4-5. Plaintiffs also offer
the testimony of Mizzell, Sparkman’s coworker:
A. I think that was it. We had some Foster Wheeler boilers, too, but I
don’t remember which ones.
Q. What about the number 8, number 9 boilers?
A. I want to say number 8 was a Foster Wheeler, but I might be wrong. I
can’t tell you exactly.
Q. You’re just not sure?
A. I’m not sure.
Mizzell Dep. 44:8-14. Mizzell further testified that Foster Wheeler might have
manufactured the nonstop valve and the nonreturn valve on the number 8 boiler. Id. at
78:6-19. He also recalled that “Foster Wheeler or Babcock’s . . . the only two [he]
[could] think of” manufactured the number 5 boiler. Id. at 66:6-25. Drawing all
inferences in favor of the plaintiffs, a jury could conclude that Foster Wheeler
manufactured boiler number 8. However, to conclude Foster Wheeler manufactured
boiler number 5 would be mere speculation.
Although Mizzell and Fred testified to Sparkman’s work on boiler number 8, they
do not indicate Sparkman was exposed to asbestos in connection to this boiler. Mizzell
testified to asbestos insulation in the piping and behind the metal lagging on boiler
number 8, but he did not recall Sparkman being around when this insulation was
manipulated in any way. Mizzell Dep. 76:15-77:21. See Henderson, 644 S.E.2d at 727
(finding that the mere presence of “static asbestos” does not equate to asbestos exposure);
Hurley, 2014 WL 1794116, at *3 (finding that, to satisfy the Lohrmann standard, “there
must be evidence that the plaintiff worked in proximity to the asbestos-containing
product when it was manipulated”). In addition, Mizzell could not recall whether the
insulation used on the valves of boiler number 8 contained asbestos. Mizzell Dep. 79:319. Fred only testified that boiler number 5 contained asbestos. Fred Dep. 45:4-13. His
testimony did not indicate whether boiler number 8 also contained asbestos.
Similarly, Lonnie’s testimony does not indicate that Sparkman was exposed to
asbestos from a Foster Wheeler boiler. When asked about the dust Sparkman would have
breathed from his proximity to Lonnie’s insulation work on boilers, Lonnie did not
mention boiler number 8. Rather, Lonnie’s response concerned boiler numbers 5, 6, and
7. Lonnie Dep. 67:16-68:7. He had previously testified that these were Riley Stoker
boilers to which he had applied block and mud insulation. Id. at 36:5-11. Lonnie does
not mention ever working on boiler number 8. Therefore, all of the deposition testimony,
taken in the light most favorable to plaintiffs as the non-moving party, fails to raise a
genuine dispute as to whether Sparkman was exposed to asbestos from a specific product
manufactured by Foster Wheeler, much less on a frequent and regular basis. Henderson,
644 S.E.2d at 727.
For the foregoing reasons, the court GRANTS Foster Wheeler’s motion to strike
and motion for summary judgment.
AND IT IS SO ORDERED.
DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
December 29, 2014
Charleston, South Carolina
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