Ellis & Winters LLP attorneys Leslie Packer, Curtis Shipley, Ashley Brathwaite, Scottie Lee, Steven Scoggan, and Carson Lane recently won summary judgment in a federal case involving a novel issue of take-home asbestos liability under North Carolina law. In McDaniel v. John Crane, Inc., et al., No. 1:19CV359, Judge William L. Osteen, Jr. of the U.S. District Court for the Middle District of North Carolina concluded that an installer and supplier of asbestos-containing insulation products owed no duty of care to the spouse of a non-employee who allegedly brought asbestos fibers home from his workplace. Ellis & Winters represents Covil Corporation, an insulation contractor and distributor.
The plaintiff in McDaniel alleged that asbestos fibers brought home on the clothing of her husband, a utility operator at Duke Power’s Belews Creek Steam Station, had caused her lung cancer.
The Court first granted Covil’s Daubert motion to exclude the causation opinion of Plaintiff’s insulation expert because it was “unsupported speculation” and not based on sufficient evidence that the plaintiff’s husband was exposed to asbestos-containing products installed or distributed by Covil. Rather, the expert effectively opined only that the husband “had the opportunity to be exposed every day,” which was not the same as “actual exposure.” The Court held that while an expert’s experience and training is useful in interpreting facts, “it is not a substitute for them.”
The Court then held that testimony by the plaintiff’s husband and a coworker failed to provide evidence from which a reasonable jury could conclude that plaintiff’s husband was exposed to Covil-attributable asbestos-containing products with frequency, regularity, and proximity as required by the Lohrmann standard that applies to asbestos-disease claims in North Carolina. Specifically, the Court found that these witnesses were not aware whether insulation they observed contained asbestos and could not place the plaintiff’s husband in areas of the plant where asbestos-containing products attributable to Covil were located. Mere proof that plaintiff’s husband and such products were in the plant at the same time was insufficient.
Finally, the Court held in the alternative that a manufacturer, supplier, or distributor of an asbestos-containing product owes no duty of care to the spouse or family member of a non-employee. The Court noted that a defendant’s tort liability under North Carolina law is “limited by both foreseeability and a special relationship” with the injured party. As a matter of first impression, it predicted that the North Carolina Supreme Court “would not find that a duty exists between a contractor and a non-employee’s spouse, because that would impose a duty where the contractor does not have control over the non-employee’s spouse.”