Wilson v. AC&S, Inc. et al

Filing 96

OPINION & ORDER granting 47 Motion for Summary Judgment by CBS Corporation f/k/a Viacom, Inc.; denying as moot 75 Motion in Limine to Exclude or Limit the Testimony of Barry I. Castleman, Sc.D. by CBS Corporation f/k/a Viacom, Inc.. Signed by Magistrate Judge Robert J. Krask and filed on 11/19/15. (tbro)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

RORIE N.WILSON,
Plaintiff,
V.

ACTI0NN0.4:14cv91

AC&S, INC. etal.
Defendants.

OPINION AND ORDER

This matter comes before the Court on defendant CBS Corporation's (formerly known as

Viacom, Inc., and Westinghouse Electric Corporation) ("Westinghouse's") motion for summary
judgment. Westinghouse filed its motion for summary judgment on September 8, 2015. ECF
No. 47. Plaintiff filed his response in opposition on September 19, 2015. ECF Nos. 63, 64. On

September 23, 2015, Westinghouse filed a rebuttal brief in support of the motion for summary

judgment. ECF No. 71. On October 9, 2015, the Court held a motions hearing. For the reasons
noted below, the Court ORDERS that Westinghouse's motion for summary judgment is
GRANTED.

I. PROCEDURAL HISTORY

On July 3, 2002, plaintiff filed this action in the Circuit Court for the City of Newport
News ("circuit court"). ECF No. 1 at 2. On July 18, 2014, Westinghouse filed a notice of
removal to remove the case to this Court. ECF No. 1. On August 16, 2014, plaintiff filed a

motion to remand (ECF No. 17) that was subsequently denied in an order by District Judge
Arenda L. Wright Allen on March 17, 2015. ECF No. 27.

Plaintiffs original complaint' named Westinghouse and General Electric ("GE"), as well
as 20 additional defendants^ that have all since been dismissed from the case. After the cause of
action was removed to this Court, GE filed a motion for summary judgment (ECF No. 51), a

motion to dismiss (ECF No. 57), and a motion in limine to exclude the testimony of plaintiffs
experts, R. Leonard Vance, Ph.D., J.D., PE, CIH ("Dr. Vance"), and John C. Maddox, M.D.

(ECF No. 83). Plaintiff simply did not respond to GE's motions and informed the Court for the
first time at the hearing on October 9, 2015 that he would no longer pursue claims against GE.
On October 14, 2015, plaintiff filed a notice of voluntary dismissal of GE. ECF No. 91.
Accordingly, Westinghouse remains the only defendant left in the case.

Additionally, plaintiffs original complaint identified three theories of liability:

negligence, breach of implied warranty, and conspiracy. ECF No. 1-1. At the hearing, plaintiff
confirmed that he was no longer pursuing a conspiracy charge against Westinghouse. Thus,
negligence and breach of implied warranty remain plaintiffs only two theories of liability.

Plaintiffs claims against Westinghouse sparked discovery disputes, which led
Westinghouse to file, on August 28, 2015, a motion to strike plaintiffs objections, compel full

and complete discovery responses, and deem a request for admission admitted. ECF No. 35. On
September 7, 2015, plaintiff responded in opposition to the motion (ECF No. 44) and, on

September 10, 2015, Westinghouse filed a reply brief (ECF No. 55). On October 9, 2015, the

' Because plaintiff originally filed this action in the circuit court, his complaint for purposes of
the present action before the Court reads "Motion for Judgment." ECF No. 1-1.

^Plaintiffs initial complaint named additional defendants: AC&S, Inc.; Amchem Products, Inc.;
C.E. Thurston & Sons, Inc.; Combustion Engineering, Inc.; Dana Corporation; The Flintkote
Co.; General Refractories Company; Georgia-Pacific Corporation; Halliburton Energy Services
Corp.; Honeywell, Inc.; Hopeman Brothers, Inc.; International Minerals & Chemical Corp.;
International Paper Corporation; Owens-Illinois, Inc.; Rapid American Corporation; Selby,
Battersby & Co.; Uniroyal, Inc.; Waco Insulation, Inc.; Garlock, Inc.; and Metropolitan Life
Insurance Co. ECF No. I-I.

Court heard argument on Westinghouse's motion to compel. In an order issued on October 13,
2015, the Court granted Westinghouse's motion to compel full and complete discovery responses

due to plaintiffs failure to timely respond to discovery or state his objections with specificity
pursuant to Rule 26 of the Local Rules of the Eastern District of Virginia ("Local Rules"). ECF
No. 89; E.D. Va. Loc. R. 26. Plaintiff was ordered to supplement his discovery responses by
October 14, 2015. ECF No. 89.

During the pendency of the action, Westinghouse filed multiple motions to exclude. On
September 8, 2015, Westinghouse filed a motion in limine to exclude the report, opinions, and
testimony of Dr. Vance. ECF No. 45. On September 19, 2015, plaintiff filed his response in

opposition. ECF No. 61. On September 23, 2015, Westinghouse filed a rebuttal brief in support
of the motion in limine to exclude the report, opinions, and testimony of Dr. Vance. ECF No. 74,
On October 9, 2015, the Court held a hearing on this motion and, in an opinion and order,

granted Westinghouse's motion in limine to exclude the report, opinions, and testimony of Dr.
Vance. Additionally, Westinghouse filed a motion to strike noncompliant expert reports and to
exclude the testimony of Richard Alexander, Jr., M.D., Peter Frasca, Ph.D., and John Newton on

September 10, 2015 (ECF No. 53), a motion in limine to exclude the testimony of John L. Hood
on September 22, 2015 (ECF No. 67), and a motion to exclude or limit the testimony of Barry 1.
Castleman, Sc.D., on September 23, 2015 (ECF No. 75).

Plaintiff did not respond to

Westinghouse's motion to strike noncompliant expert reports and to exclude testimony of
Richard Alexander, Jr., M.D., Peter Frasca, Ph.D., and John Newton or Westinghouse's motion

in limine to exclude the testimony of John L. Hood.

On October 2, 2015, Westinghouse

withdrew both motions as moot after plaintiff did not include Richard Alexander, Peter Frasca,

John Newton, or John L. Hood in his pretrial disclosures as witnesses he intended to call at trial.

ECF No. 79; Fed. R. Civ. P. 26(a)(3). Plaintiff responded to Westinghouse's motion to exclude
or limit the testimony of Barry I. Castleman, Sc.D., on October 5, 2015 (ECF No. 85), and
Westinghouse filed a rebuttal brief on October 12, 2015 (ECF No. 88).
On September 23, 2015, Westinghouse filed a motion to strike plaintiffs claim for

punitive damages. ECF No. 72. Once again, plaintiff did not respond to this motion and,
instead, informed the Court for the first time at the hearing on October 9, 2015 that he would no
longer pursue a claim for punitive damages against Westinghouse.

Accordingly, the Court

dismissed Westinghouse's motion to strike plaintiffs claim for punitive damages as moot, in an
order dated October 13, 2015. ECF No. 89.

On September 8, 2015, Westinghouse filed a motion for summary judgment. ECF No.

47. Plaintiff responded in opposition on September 19, 2015 with a memorandum that did not
comply with Local Rule 56, which requires a "specifically captioned section listing all material

facts as to which it is contended that there exists a genuine issue necessary to be litigated and
citing the parts of the record relied on to support the facts alleged to be in dispute." ECF No. 64;

E.D. Va. Log. R. 56(B). Plaintiffs response to Westinghouse's motion for summary judgment
mirrors, almost identically, his response to Westinghouse's motion in limine to exclude Dr.

Vance.

ECF Nos. 63, 64. Both responses referenced and attached two 1960s era technical

manuals on Westinghouse air circuit breakers and a 2010 naval advisory that notes the possible
presence of asbestos in certain arc chutes contained within some circuit breakers, neither of

which was referenced in Dr. Vance's written expert report.
Westinghouse filed a rebuttal brief on September 23, 2015.

ECF Nos. 63-6, 63-7, 63-11.
ECF No. 71.

Westinghouse's

memorandum in support of the motion for summary judgment referenced plaintiffs claims
related to Westinghouse micarta, transformers, commutated inverters, turbine generators,

overload relays, and arc chutes, which were all products plaintiff previously claimed had
contributed to his disease. ECF No. 48 at 15-24; PI. Ans. to Interrog., ECF No. 48-2 at 2-3;

Compl. ^ 4, ECF No. 1-1. Plaintiffs response to the summary judgment motion, however, only
referenced Westinghouse circuit breakers containing arc chutes. ECF No. 64. At the hearing on

October 9, 2015, the Court asked plaintiff to clarify which Westinghouse products remained in
dispute. At that time, plaintiff first advised the Court that he was no longer pursuing claims
against Westinghouse for asbestos exposure associated with Westinghouse micarta, transformers,
commutated inverters, turbine generators, or overload relays. Westinghouse arc chutes remain
the only product left in dispute. Accordingly, the Court will address the motion for summary
judgment as it relates to Westinghouse arc chutes.
11. STANDARD OF REVIEW

A. Summaty Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is proper if

"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). For the evidence to
present a "genuine" issue of material fact, it must be "such that a reasonable jury could return a
verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., All U.S. 242, 248 (1986).
The party "seeking summary judgment always bears the initial responsibility of informing the
[court] of the basis for its motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett,

All U.S. 317, 323 (1986) (quotations omitted).

Subsequently, the burden shifts to the

nonmoving party to present specific facts demonstrating that a genuine issue of material fact
exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986) ("When the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts.") When

deciding a motion for summary judgment, the Court must view the facts, and inferences to be
drawn from the facts, in the light most favorable to the non-moving party. Anderson, All U.S. at
255.

B. Asbestos-Related Products Liability
The parties have not agreed to whether federal maritime law or Virginia law applies to

plaintiffs underlying products liability claim. Plaintiffs complaint asserts that the case arises
"under the laws of Virginia as well as under the general admiralty and maritime laws of the
United States." EOF No. 1-1 at 6. In turn, Westinghouse's memorandum filed in support of its
motion for summary judgment analyzes plaintiffs claim under the standard for asbestos-related
products liability claims brought under maritime law.

ECF No. 48.

Westinghouse confirmed its belief that maritime law applies.

At the hearing,

When asked at the hearing,

however, plaintiff would not agree that maritime law definitively applies and suggested that
Virginia law may apply instead.
The Grubart standard lays out a two-part test for the application of maritime law.
Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 538-40 (1997). First, the "location

test" in a toxic tort case requires the Court to consider whether the alleged exposure to the toxic
substance occurred onboard a naval vessel on the navigable waters. Delatte v. A.W. Chesterton
Co., 2011 U.S. Dist. LEXIS 121788, at *5-6 (E.D. Pa. Feb. 25, 2011).

Secondly, the

"connection test" requires that the incident have the "potential to disrupt maritime commerce"

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and "the general character of the activity giving rise to the incident" must show a "substantial
relationship to maritime activity." Id. at *6 {citing Grubart, 513 U.S. at 538-39). The filings

pertaining to the motion for summary judgment do not contain sufficient information to enable
the Court to apply the Grubart test to the facts of this case.
It is unnecessary to resolve this issue, however, because the standards are fiindamentally

similar under both maritime and Virginia law. In a products liability case under maritime law,

the plaintiff must show that "(1) he was exposed to the defendant's product, and (2) the product
was a substantial factor in causing the injury he suffered." Lindstrom v. A-C Product Liability

Trust, 424 F.3d 488, 492 (6th Cir. 2005).^ If plaintiff can show "substantial exposure for a
substantial period of time," this supports a finding that the product substantially caused
plaintiffs injury. Id. However, a mere showing that defendant's product existed at plaintiffs
workplace remains insufficient to prove that the product was a substantial factor in causing
plaintiffs injury. Id. Plaintiff must show a "high enough level of exposure that an inference that

the asbestos was a substantial factor in the injury is more than conjectural."

Harbour v.

Armstrong World Indus., Inc., 932 F.2d 968 (6th Cir. 1991). Under Virginia law, plaintiff must

show "it is more likely than not" that plaintiffs alleged exposure to asbestos from defendant's
product "occurred prior to the development" of his illness and "was sufficient to cause" his
illness. Ford Motor Co. v. Boomer, 285 Va. 141, 159, 736 S.E.2d 724, 733 (Va. 2013). Under
either standard, plaintiff faces the same set of hurdles and, accordingly, the outcome of his case
depends on whether he can establish causation by showing that Westinghouse breached a duty
that caused his injuries.

^ See also Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)
(noting that, under Maryland state law, a plaintiff in a products liability asbestos case must show
"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").

III. UNDISPUTED FACTS

In 2002, plaintiff filed the present case in circuit court. ECF No. 1-1. From 1963-2001,

plaintiff was employed by the United States Navy at Norfolk Naval Shipyard as a shipfitter,

electrician, draftsman, and engineer. ECF No. 1-1. Plaintiffs complaint stated that he had been
diagnosed with asbestosis on March 15, 2001, a disease caused by asbestos-containing insulation
products he encountered at Norfolk Naval Shipyard. ECF No. 1-1. When the case was removed

to this Court, plaintiff produced medical records indicating that he had since been diagnosed with
mesothelioma, a form of cancer. ECF No. 62-13.

Plaintiffs remaining claims stem from his work as a nuclear engineer and electrical
engineer from approximately 1971 through 1979, during which he encountered Westinghouse
circuit breakers containing arc chutes. PI. Dep. vol. 2, 470:23-471:5, Sept. 17, 2014. Each

circuit breaker, designed to protect the circuit that supplied electricity to other pieces of
equipment on the ship, contained three arc chutes. PI. Dep. vol. 1, 121:15, Nov. 14, 2014; PL
Dep. vol. 2, 271:21-272:4, Sept. 17, 2014. The arc chutes associated with the circuit breaker

were designed to catch an electric arc or "fireball" generated by the opening and closing of a
circuit. PI. Dep. vol. 1, 128:14-19, Nov. 14, 2014. The arc chutes dissipated the heat and energy
accompanying the fireball moving up the chute so that it did not damage the breaker assembly.

PL Dep. vol. 1, 128:21-25, Nov. 14, 2014. Each arc chute was encapsulated in a hard, molded
resin matrix. Vance Dep. 214:17-22.

Plaintiff wrote operating procedures and searched for hairline cracks to assist
shopworkers tasked with inspecting, testing, and replacing circuit breakers.
161:15-162:13, Aug. 21, 2014.

PL Dep. vol. 1,

Sometimes, plaintiff would hold the arc chutes to look for

cracks, blowing and brushing off dust in the process. PL Dep. vol. 1, 162:19-22, Aug. 21, 2014.

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While working as a nuclear engineer, plaintiff checked circuit breakers to ensure proper
functioning. PL Dep. vol. 1, 130:13-15, Nov. 14, 2014. If the arc chute component of a circuit
breaker needed replacement, plaintiff would typically order one. PI. Dep. vol. 1, 133:2-7, Nov.
14, 2014. In an emergency situation (that is, if the ship needed to sail immediately), the arc

chute would be repaired, but plaintiff did not recall ever personally repairing an arc chute in an
emergency situation. PI. Dep. vol. 2, 346:23-347:4, Dec. 22, 2014. Approximately, one week a
month, plaintiff worked on circuit breakers.

PI. Dep. vol. 2, 474:23-475:3, Sept. 17, 2014.

During this time, shop workers blew the arc chutes with compressed air and dust blew "all over,"
including on the arc chutes and frame. PI. Dep. vol. 2, 475:21, Sept. 17, 2014. Plaintiff also
described taking arc chutes back to the shop to work on them at "every availability" between
1971 and 1978. PI. Dep. vol. 2,477:22-25, Sept. 17, 2014.
IV, ANALYSIS

After Westinghouse filed a motion for summary judgment, plaintiff did not follow the
requirements of Local Rule 56, which requires that a brief in response to a motion for summary
judgment include "a specifically captioned section listing all material facts as to which it is
contended that there exists a genuine issue necessary to be litigated and citing the parts of the
record relied on to support the facts alleged to be in dispute." E.D. Va. Loc. R. 56(B). Not only

did plaintiff not include a specifically captioned section listing all material facts in dispute, but,
as noted by Westinghouse in its rebuttal brief, plaintiff does not even use the words "genuine

issue" or "material fact" in his response.

ECF Nos. 63, 71 at 4.

Notwithstanding the

shortcomings associated with plaintiffs response, at the October 9, 2015 hearing, the Court

specifically gave plaintiff the opportunity to make an additional filing to bring any additional

facts to the court's attention. See Fed. R. Civ. P. 56(e)(1). On October 13, 2015, plaintiff filed

"supplemental submissions" for the Court's consideration, which included excerpts from
plaintiffs deposition, a Westinghouse technical manual, and a military specification describing
circuit breakers, yet still did not include a statement of disputed facts. EOF No. 90. Nonetheless,
the Court considered these supplemental materials.
Local Rule 56 specifies that, "[i]n determining a motion for summary judgment, the

Court may assume that facts identified by the moving party in its listing of material facts are
admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition
to the motion." E.D. Va. Loc. R. 56(C); see also Deavers v. Vasquez, 57 F. Supp. 3d 599, 601
(E.D. Va. 2014) ("Under the Local Rules, the Court may accept those facts not disputed to be

admitted."). Because the Court must view the facts in the light most favorable to plaintiff, the

Court has examined plaintiffs brief and exhibits to identity any evidence that creates a genuine
issue of material fact. For the reasons discussed below, the Court FINDS that, while a genuine

issue of material fact exists regarding whether the Westinghouse arc chutes to which plaintiff
was exposed contained asbestos, no genuine issue of material fact exists regarding whether
Westinghouse arc chutes released asbestos fibers that were a substantial factor in causing

plaintiffs injury under maritime law or were more likely than not sufficient to cause his injury
under Virginia law.
A. A genuine issue of material facts exists regarding whether the Westinghouse arc
chutes to which plaintiff was exposed contained asbestos.
At times, plaintiff has expressed less than complete confidence that the Westinghouse arc
chutes he encountered contained asbestos. At the motions hearing, plaintiffs counsel stated that
all the evidence combined "suggests that it is very likely that [Westinghouse arc chutes]
contained asbestos." Nonetheless, by viewing, in a light most favorable to the plaintiff, evidence

of plaintiff s own knowledge and testimony, two 1960s era technical manuals on Westinghouse
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air circuit breakers, and a 2010 naval advisory that notes the possible presence of asbestos in

some kinds of arc chutes, the Court FINDS that a genuine issue of material fact exists regarding
whether plaintiff encountered asbestos-containing Westinghouse arc chutes.

Plaintiff testified that the Westinghouse arc chutes he encountered appeared to contain
asbestos. When questioned about the arc chutes, plaintiff testified that, "[t]hey were made out of
- it looked like to me asbestos." PI. Dep. vol. 1,132:7-8, Nov. 14,2014. When asked what parts

of the arc chute contained asbestos, plaintiff replied that he thought "the chute itself contained
asbestos." PI. Dep. vol. 2, 476:14-18, Sept. 17, 2014. Plaintiff confirmed that he "didn't go to
the chemistry lab and check [the arc chute] out at the time, but it did look like [asbestos] to me"

because the arc chute was gray, fibrous, and used in a high-temperature application. PI. Dep.
vol. 2, 274:17-275:11, Sept. 17, 2014. Although he received no training on how to identify
asbestos-containing materials, plaintiffs degree in electrical engineering, as well as his work
history as a nuclear engineer and electrical engineer, support his testimony and help create a

genuine issue of material fact about whether the Westinghouse arc chutes he encountered
contained asbestos. PI. Dep. vol. 2, 221:17-222:3, Dec. 22, 2014; ECF No. 46-3 at 2.

This conclusion is also supported by the Westinghouse technical manuals and the naval
advisory provided to the Court in plaintiffs opposition to the summary judgment motion.
Although a significant and singular problem with plaintiffs case is his failure to identify the
actual product he encountered in the 1970s (that is, the specific kind of Westinghouse circuit

breakers containing the arc chutes in question), the two, 1960s era Westinghouse technical
manuals and the 2010 naval advisory suggest generally that the Westinghouse circuit breakers
discussed in those documents actually do or may, respectively, contain arc chutes containing

asbestos. ECF Nos. 62-6 at 9, 62-7 at 14 (describing arc chutes containing "metal and asbestos

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plates"); ECF No. 62-11 at 3-4 (noting "[t]he following ACB circuit breakers listed by
manufacturer may contain asbestos arc chutes . . . Westinghouse:

All DBN types").

Such

evidence, when coupled with plaintiffs deposition testimony, is sufficient to create a genuine
dispute of material fact concerning whether plaintiff encountered asbestos-containing arc chutes.
B. No genuine issue of material fact exists regarding whether plaintiffs exposure to
Westinghouse arc chutes was a substantial factor in causing plaintiffs injury under
maritime law or more likely than not was sufficient to cause plaintiffs injury under
Virginia law.

This leaves for consideration whether a dispute of material fact exists about whether
Westinghouse arc chutes released asbestos fibers that were a substantial factor in causing

plaintiffs injury under maritime law or whether such exposure was more likely than not

sufficient to cause such injury under Virginia law. To establish that such a dispute exists here,

plaintiff primarily relies on plaintiffs deposition testimony and the expert report and proposed
testimony of his causation expert. Dr. Vance.
Plaintiffs knowledge and testimony do not create a genuine issue of material fact about

whether Westinghouse arc chutes released asbestos fibers that caused plaintiffs injury. Because
plaintiff never tested the alleged asbestos composition of the arc chute, his testimony primarily
recounts his visual observations.

PI. Dep. vol. 2, 274:17-275:11, Sept. 17, 2014.

Plaintiff

testified that the arc chutes he encountered contained what "looked like" asbestos. PI. Dep. vol.
1, 132:7-8, Nov. 14, 2014.

However, Dr. Vance testified that there is no way to quantify

asbestos in dust solely by visible inspection.

Vance Dep. 24:7-20, 233:3-6.

Plaintiff also

testified that he saw visible dust "on the arc chute and on the frame and everywhere." PI. Dep.
vol. 2, 475:22-23, Sept. 17, 2014. According to plaintiff, this dust became airborne when the arc
chutes were blown with compressed air. PI. Dep. vol. 2, 475:5-23, Sept. 17, 2014. Plaintiff,

however, has not advanced any particular knowledge or facts about how much of the dust he
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encountered allegedly contained asbestos. On the other hand, Westinghouse submitted an

affidavit by retired Westinghouse engineer, Raymond McMullen, which notes that the air circuit
breakers plaintiff described were contained in metal cabinets "through which ambient air and

dust from the surrounding environment can pass freely from the outside to the inside of the
cabinet." ECF 46-10 at 2. Thus, the composition of the dust plaintiff observed is uncertain.

Moreover, plaintiffs own knowledge and testimony fail to create genuine issues of material fact
concerning the extent of asbestos content in Westinghouse arc chutes, whether the arc chutes he
encountered released asbestos fibers, or what concentration of asbestos fibers were released, if

any. Accordingly, plaintiffs testimony creates no genuine dispute of material fact about whether
the Westinghouse arc chutes released airborne asbestos fibers at levels significant enough to
constitute a substantial factor in causing plaintiffs injury or at levels which were more likely
than not sufficient to cause plaintiffs injury.

To attempt to address this gap in proof, plaintiff intended to call Dr. Vance to establish
the threshold limit value that signifies an unacceptable level of airborne asbestos and show that
plaintiff encountered an unacceptable level of airborne asbestos through exposure to

Westinghouse arc chutes. In his report. Dr. Vance identifies the accepted threshold limit value

during the time plaintiff was working as "5 million particles per cubic foot or 12 [fibers per cubic
centimeter]." ECF No. 62-1 at 8. He then concludes that the presence of visible dust indicates
that plaintiff was exposed to asbestos fibers from Westinghouse arc chutes at levels greater than

this accepted threshold limit value. ECF No. 62-1 at 8. In two identified opinions at the end of
his report. Dr. Vance states that "defendants failed to provide appropriate warnings about the
hazards of asbestos to [plaintiff]" and "the defendants' actions in these respects fell beneath a
reasonable standard of care."

In a 21 page opinion and order, the Court discussed why Dr.

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Vance's report, opinions, and proposed testimony fail to satisfy the standards identified by
Daubert and Federal Rule of Evidence 702. Daubert, 509 U.S. 579 (1993); Fed. R. Evid. 702.

In sum, the Court found the reasoning and methodology Dr. Vance used to conclude that plaintiff
encountered an unacceptable level of airborne asbestos was unreliable. The Court also found Dr.

Vance's report, opinions, and proposed expert testimony were not relevant because they were not
"sufficiently tied to the facts of the case" and incapable of aiding "the jury in resolving a factual
dispute." Daubert^ 509 U.S. at 591.

Plaintiff acknowledged Dr. Vance's essential role in his case when he submitted virtually

identical responses to Westinghouse's motion to exclude Dr. Vance and Westinghouse's motion
for summary judgment. He also acknowledged Dr. Vance's role in his case at the motions
hearing. The Court asked plaintiff about other evidence, documents, facts or testimony that he
would rely on to prove that Westinghouse arc chutes caused his injury in the event that the Court

granted Westinghouse's motion to exclude Dr. Vance. Plaintiffs counsel responded that "Dr.
Vance's testimony would be critical to the case" and answered affirmatively when the Court

clarified whether his answer signified an inability to provide other sources proving causation.
Notwithstanding the concessions by plaintiffs counsel, the Court gave plaintiff the opportunity
to supplement its opposition to the summary judgment motion to attempt to remedy plaintiffs

failure to comply with the Local Rules and bring any such facts to the Court's attention. After
plaintiff filed "supplemental submissions" for the Court's consideration, ECF No. 90, the Court

conducted a searching inquiry through all evidence submitted for any facts supporting plaintiffs
theory of causation. However, the Court has found no facts that give rise to a genuine dispute of
material fact regarding whether Westinghouse arc chutes caused plaintiffs injury.

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V. CONCLUSION

Accordingly, the Court FINDS the evidence is not "such that a reasonable jury could

return a verdict for the non-moving party." Anderson, All U.S. at 248. Although a genuine

issue of material fact exists regarding whether the Westinghouse arc chutes plaintiff worked
around contained asbestos, no genuine issue of material fact exists regarding whether such arc
chutes emitted airborne asbestos fibers to which plaintiff was exposed and which were a

substantial factor in causing plaintiffs injury or more likely than not were sufficient to cause
plaintiffs injury. Accordingly, the Court FINDS that summaryjudgment is proper.
VI. ORDER

For the reasons discussed above, the Court hereby ORDERS that Westinghouse's motion

for summary judgment, ECF No. 47, is GRANTED.

Moreover, the Court ORDERS that

Westinghouse's motion to exclude or limit the testimony of Dr. Castleman, ECF No. 75, is
DENIED as MOOT.

The Clerk of Court shall mail a copy of this Opinion and Order to all counsel of record.
Robert J.Krask

United StatesMa^tetrate Judge
Robert J. Krask

United States Magistrate Judge

Norfolk, Virginia

November / f, 2015

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