Sparkman v. A W Chesterton Company et al
Filing
155
ORDER denying 104 Defendant Research-Cottrell, Inc.'s Motion for Summary Judgment Signed by Honorable David C Norton on 12/29/14.(akob, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
TERENCE J. SPARKMAN AND
LEONARD SPARKMAN, personal
representatives of the estate of ELIJAH
SPARKMAN, JR., deceased,
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Plaintiffs,
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vs.
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A.W. CHESTERTON COMPANY;
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FOSTER WHEELER ENERGY CORP.;
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GOULDS PUMPS, INC.;
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METROPOLITAN INSURANCE
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COMPANY; RESEARCH-COTTRELL,
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INC. n/k/a AWT AIR COMPANY, INC;
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RILEY POWER, INC.; UNIROYAL, INC., )
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Defendants.
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No. 2:12-cv-02957-DCN
ORDER
This matter is before the court on defendant Research-Cottrell, Inc.’s (“ResearchCottrell”) motion for summary judgment. For the reasons set forth below, the court
denies Research-Cottrell’s motion for summary judgment.
I. BACKGROUND
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 Research-Cottrell’s Mot. 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
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Westvaco. Id. Relevant to this motion, plaintiffs allege that Sparkman was exposed to
asbestos from Research-Cottrell’s asbestos-containing precipitators while employed at
Westvaco. Id. at 1-2. 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 precipitators. Id.
Although Sparkman passed away before he could be deposed in this matter, four
of his coworkers have provided testimony as to how his work with and around
precipitators at Westvaco 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 evidence.
Westvaco personnel records indicate that Sparkman worked as a “precipitator
man” from June 1974 through May 1975. Research-Cottrell’s Mot. Ex. D. A
precipitator is a building size structure used in the paper making process to filter dust and
dirt from the combustion gases emitted by boilers at the facility. Research-Cottrell’s
Mot. 2. Richard Mizzell (“Mizzell”), Sparkman’s coworker at Westvaco, testified that
Sparkman was a “precipitator man” around 1970 or 1971. Mizzell Dep. 26:3-5.
However, Westvaco’s personnel records reveal that Sparkman was a pool man from May
1968 to September 1970. Research-Cottrell’s Mot. Ex. D. He then became a utility man
and was employed in this capacity until June 1974. Id. All of these positions took place
in the recovery department. Id.
According to Mizzell, there were six or seven precipitators located in the recovery
department of Westvaco, including precipitator “9A,” and Sparkman worked on all of
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them. Mizzell Dep. 30:19-25. Fred Kessler (“Fred”) worked with Sparkman “at times”
from October 1971 to March 1979. Fred Dep. 22:2-22, 24:23-25. Fred testified that all
of the precipitators in the recovery department, including precipitator number 9, “may”
have been manufactured by Research-Cottrell. Id. at 63:14-25, 67:1-3. He recalled that
Sparkman worked on all of the precipitators in the recovery department as a “precipitator
operator.” Id. at 65:12-18.
Mizzell testified that he helped Sparkman perform his work on precipitators from
1969 to 1972. Mizzell Dep. 28:16-23; 31:1-6. He recalled that they would use a five to
eight pound hammer to beat the “salt cakes” from the precipitator plates. Id. at 29:10-18.
According to Mizzell, in order to perform this task, they were required to physically
remove the door and go inside of the precipitator. Id. at 29:19-30:2. Mizzell specifically
recalled Sparkman working on a Research-Cottrell precipitator on 15 to 20 occasions. Id.
at 69:18-22. He testified that Sparkman was exposed to the asbestos insulation used on
the precipitators at Westvaco. Id. at 84:5-10.
James Barnes (“Barnes”) testified that when he was a laborer at Westvaco from
1970 to 1975, he worked with and around Sparkman, and helped to assist Sparkman with
his work on precipitator numbers 6 and 7. Barnes Dep. 30:11-25, 31:22-32:8, 66:21-23.
Barnes recalled cleaning out these precipitators with Sparkman “a few times” and
testified that this process could take anywhere from four to five hours to three or four
days. Id. at 67:14-68:5. Barnes also observed Sparkman clean precipitator number 1, but
could not testify how often Sparkman worked on this precipitator. Id. at 68:19-24, 69:710.
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Sparkman worked near precipitators after his time as a precipitator man ended.
Pls.’ Resp. 3. Lonnie Kessler (“Lonnie”), Fred’s brother, worked as an insulator at
Westvaco from 1976 to 1988, where he was responsible for insulating the pipes
throughout the facility, including the pipes attached to precipitators. Lonnie Dep. 30:1219, 35:17-36:23. During this time, Lonnie and Sparkman worked around each other on a
weekly basis. Id. at 67:2-5. Lonnie testified that his insulation work would create dust
that Sparkman would have inhaled when working near him. Id. at 67:16-24. He recalled
doing “patch jobs” on all of the precipitators, which included precipitator number 9,
when Sparkman was around. 99:5-11, 100:23-101:4, 102:3-5. This process involved
replacing the insulation on certain parts of the precipitators with “Kaylo pipe covering”
insulation or non-asbestos containing mineral wool insulation. Id. at 99:5-11, 100:23101:4, 102:12-17.
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,
Research-Cottrell filed a motion for summary judgment, to which plaintiffs responded on
September 24, 2014. On September 29, 2014, Research-Cottrell filed a reply. The
motion has been fully briefed and is now ripe for the court’s review.
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II. STANDARD
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.
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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.”).
III. DISCUSSION
A.
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. 8-9. Specifically, the plaintiff in
Lohrmann suffered from asbestosis, whereas Sparkman contracted mesothelioma.
Lohrmann, 782 F.2d at 1158; Pls.’ Resp. 8. Plaintiffs emphasize that the Seventh Circuit
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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. Ct. 1991)).
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)).
B.
Research-Cottrell’s Motion for Summary Judgment
Research-Cottrell argues that there is no evidence that Sparkman was exposed to
asbestos for which it is responsible, and therefore plaintiffs cannot satisfy the “frequency,
regularity, and proximity test” adopted in South Carolina. Research-Cottrell’s Mot. 1.
Plaintiffs respond that there is ample evidence to establish that Sparkman was exposed to
asbestos from a Research-Cottrell precipitator. Pls.’ Resp. to Research-Cottrell’s Mot.
11.
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Westvaco’s personnel records directly conflict with Mizzell’s testimony regarding
the time period Sparkman worked as a precipitator man. See Research-Cottrell’s Mot.
Ex. D. However, the court need not address Mizzell’s account of Sparkman’s work as a
precipitator man. Plaintiffs have presented other evidence such that a reasonable jury
could conclude that Sparkman was exposed to at least one asbestos-containing ResearchCottrell precipitator on a frequent, regular, and proximate basis such that it could be a
substantial cause in the development of his mesothelioma. Henderson, 644 S.E.2d at 727.
Regardless of the time period Sparkman was a precipitator man, Mizzell and Fred’s
testimony establish that Research-Cottrell precipitators were present in the recovery
department while Sparkman worked at Westvaco. Mizzell Dep. 69:18-22; Fred Dep.
63:14-25. In addition, Mizzell, Fred, and Lonnie’s testimony establish that precipitator
number 9 was located in the recovery department while Sparkman worked at Westvaco.
Mizzell Dep. 30:19-25; Fred Dep. 66:6-8, 67:1-3; Lonnie Dep. 102:3-8.
Sparkman’s work with and near precipitator number 9 is particularly important
when viewed in conjunction with Research-Cottrell’s records. On November 15, 1979,
the maintenance and service division of Research-Cottrell placed a purchase order for
asbestos pad insulation to ship to Westvaco “[f]or [u]nit 9A.” Pls.’ Resp. to ResearchCottrell’s Mot. Ex. H at 40. An invoice dated January 2, 1980 indicates this division
shipped asbestos filler and gaskets made from asbestos cloth “for unit 9A” to Westvaco.
Id. Ex. H at 45. Further, in its discovery response, Research-Cottrell admits that it
“supplied one or more precipitators to the job site [Westvaco].” Id. Ex. G at 6. From this
evidence, a jury could conclude that Research-Cottrell manufactured unit 9A and
supplied asbestos insulation to be used on this unit on at least one occasion. Cf.
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Lohrmann, 782 F.2d at 1163 (finding that invoices showing sales of certain Raymark
products failed raise a genuine dispute as to causation when “there was no evidence to
show when or where these products were used”).
Lonnie’s testimony raises a genuine dispute as to whether his insulation work on
the precipitators in the recovery department exposed Sparkman to asbestos on a frequent
and regular basis. Lonnie testified that his insulation work, such as “patch jobs,” would
create dust that Sparkman would have inhaled when working near him. Id. at 67:16-24,
99:5-9. The patch jobs involved replacing the insulation on certain parts of the
precipitators with “Kaylo pipe covering” insulation or non-asbestos containing mineral
wool insulation. Id. at 99:5-11, 100:23-101:4, 102:12-17. Lonnie testified that all of the
precipitators were covered in insulation, and when doing the patch jobs, he would
sometimes have to “cut out a piece” of the precipitator. Id. at 99:8-13, 100:20-25.
A jury could reconcile this testimony with the purchase order and invoice to find
that Sparkman was exposed to asbestos through his proximity to Lonnie’s insulation
work on at least one Research-Cottrell precipitator. A reasonable jury could infer such
work took place on a weekly basis over the course of twelve years. Therefore, plaintiffs
have raised a genuine dispute as to whether Sparkman was exposed to asbestos from his
work with and around a Research-Cottrell precipitator on a frequent and regular basis.
See Owens-Corning Fiberglas Corp. v. Garrett, 682 A.2d 1143, 1157 (Md. 1996) (finding
causation under the “frequency, regularity and proximity test” where invoices indicated
the purchase of Kaylo for plaintiff’s employer during the time he worked there, and
testimony established that Kaylo was frequently used in the area where plaintiff regularly
worked).
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IV. CONCLUSION
For the foregoing reasons, the court DENIES Research-Cottrell’s 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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