Dickens v. A-1 Auto Parts & Repair (2019)

Our plain-English summary of Dickens v. A-1 Auto Parts & Repair (U.S. District Court, Southern District of Mississippi, October 15, 2019).

William Dickens and Karla Dickens sued a number of companies in federal court in Mississippi. They allege that William developed mesothelioma from asbestos exposure in his work and personal life. This order dealt only with Edelbrock, which the plaintiffs said made asbestos-containing carburetor kits he used while repairing his own and others' vehicles in Pascagoula. Edelbrock moved for summary judgment, and the plaintiffs did not respond, even after receiving extra time. The court looked at Dickens' deposition. The only Edelbrock product he used was an intake manifold, bought new and installed in a car he owned from 1975 to 1979. He removed and reinstalled it about eight times and never altered it. Applying Mississippi's Lohrmann test, which requires regular exposure over an extended period near where the plaintiff worked, the court found his contact was casual or minimal. It granted summary judgment and dismissed the claims against Edelbrock with prejudice.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Southern District of Mississippi
• Decided: October 15, 2019
• Stage: Summary judgment
• State: Mississippi

Outcome. The court granted Edelbrock's unopposed motion for summary judgment and dismissed the Dickens plaintiffs' claims against Edelbrock with prejudice.

What the court held. Under Mississippi's Lohrmann test, a plaintiff must show more than casual or minimal contact with a defendant's asbestos-containing product. Using the product about eight times in four years did not meet that standard.

Issues decided: Causation, Product Identification.

The people and their exposure

• William Dickens: mesothelioma

Who	Work	Where	When	Products
William Dickens	maintenance and repairs to personal vehicles and those of family and friends	personal vehicles, outdoors in a partially roofed area, Pascagoula, Mississippi	1975-1979	Edelbrock Carburetor Kits, Edelbrock intake manifold

The defendants

• Edelbrock Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Gorman-Rupp Company v. Hall (Mississippi Supreme Court, 2005). The Mississippi Supreme Court reversed the trial court's denial of summary judgment and rendered judgment for Gorman-Rupp Company, against plaintiff Bobby G. Hall.
• Chavers v. General Motors Corp. (Arkansas Supreme Court, 2002). The Arkansas Supreme Court affirmed the trial court's summary judgment for General Motors, AlliedSignal and Ford, rejecting the claims of Deidra Chavers over her husband's mesothelioma death.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Smith v. Union Carbide Corp. (U.S. District Court, Eastern District of Louisiana, 2013). The federal district court denied Miriam Smith's motion to remand, finding the removal timely and not waived and Louisiana defendant Taylor-Seidenbach improperly joined, so the Removal Defendants (Dow, Ethyl, Union Carbide) prevailed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

WILLIAM DICKENS and KARLA, DICKENS, Plaintiffs,

v.

A-1 AUTO PARTS & REPAIR, ET AL., Defendants.

Cause No. 1:18CV162-LG-RHW.

October 15, 2019.

United States District Court, S.D. Mississippi, Southern Division.

William Dickens & Karla Dickens, Plaintiffs, represented by Cameron M. McCormick, WIGGINS LAW, PLLC, Eric Przybysz, SIMON GREENSTONE PANATIER, PC, pro hac vice & Frank J. Wathen, SIMON GREENSTONE PANATIER, PC, pro hac vice.

Autozone, Inc., Defendant, represented by Keith D. Obert, OBERT LAW GROUP, P.A.

Borg-Warner Morse Tec LLC, sued individually and as successor-in-interest to Borg-Warner Corporation, Defendant, represented by Bradley Adam Hays, MANION GAYNOR MANNING, LLP, Christopher O. Massenburg, MANION GAYNOR MANNING, LLP, Jeanette S. Riggins, MANNING GROSS MASSENBURG, LLP & Michael D. Goggans, MANNING GROSS

• MASSENBURG, LLP.

Bosch Brake Components LLC, sued individually and as successor-in-interest to Morse Automotive Corporation, Defendant, represented by Deirdre C. McGlinchey, MCGLINCHEY STAFFORD, PLLC, pro hac vice, Jose L. Barro, III, MCGLINCHEY STAFFORD, PLLC, pro hac vice & Zelma M. Frederick, MCGLINCHEY STAFFORD, PLLC.

Caterpillar, Inc., Defendant, represented by John T. Rouse, MCGLINCHEY STAFFORD, PLLC.

Edelbrock Corporation, Defendant, represented by Fred Krutz, III, FORMAN WATKINS & KRUTZ, LLP & Daniel J. Mulholland, FORMAN WATKINS & KRUTZ, LLP.

Federal-Mogul Asbestos Personal Injury Trust, sued as successor to Felt-Products Manufacturing Co., Defendant, represented by Jeffrey P. Hubbard, HUBBARD, MITCHELL, WILLIAMS & STRAIN, PLLC & Stacey L. Strain, HUBBARD, MITCHELL, WILLIAMS & STRAIN, PLLC.

Ford Motor Company, Defendant, represented by Amber Barlow, KUCHLER, POLK, WEINER, LLC, pro hac vice, Janika D. Polk, KUCHLER POLK WEINER, LLC, Deborah D. Kuchler, KUCHLER, POLK, WEINER, LLC & Lee Blanton Ziffer,

KUCHLER, POLK, WEINER, LLC.

Goulds Pumps, Incorporated, Defendant, represented by Jennifer Marie Studebaker, FORMAN WATKINS & KRUTZ, LLP & Joshua A. Leggett, FORMAN WATKINS & KRUTZ, LLP.

Holley Performance Products, Inc., Defendant, represented by Mary Clift Abdalla, FORMAN WATKINS & KRUTZ, LLP & Ryan W. Blackney, FREEBORN & PETERS, LLP, pro hac vice.

Honeywell International, Inc., sued as successor-in-interest to Bendix Corporation, Defendant, represented by Edward W. Mizell, BUTLER SNOW LLP, James H. Bolin, BUTLER SNOW LLP & Meade W. Mitchell, BUTLER SNOW LLP.

Johnson & Johnson Consumer Inc., a subsidiary of Johnson & Johnson, Defendant, represented by Edward W. Mizell, BUTLER SNOW LLP, James H. Bolin, BUTLER SNOW LLP, Kathleen I. Carrington, BUTLER SNOW LLP & Meade W.

Mitchell, BUTLER SNOW LLP.

Markey Machinery Co. Inc., Defendant, represented by Mary Margaret Gay, GAY JONES & KUHN, PLLC & Sarah E. Jones, GAY JONES & KUHN, PLLC.

MW Custom Papers, LLC, as successor-in-interest to The Mead Corporation, Defendant, represented by John Albert Smyth, III, MAYNARD, COOPER & GALE, PC.

Perrigo Company, Defendant, represented by Ben F. Galloway, III, OWEN & GALLOWAY, PLLC, Jeffrey Jerome Hines, GOODELL, DEVRIES, LEECH & DANN, LLP, pro hac vice, Joe Sam Owen, OWEN, GALLOWAY & MYERS, PLLC, Michael A. Pichini, GOODELL, DEVRIES, LEECH & DANN, LLP, pro hac vice & Richard Matthew Barnes, GOODELL, DEVRIES, LEECH & DANN, LLP, pro hac vice.

Trinity Marine Products, Inc., for its Nabrico brand of products, Defendant, represented by Allen E. Graham, PHELPS DUNBAR, LLP, Barbara L. Arras, PHELPS DUNBAR, LLP, pro hac vice & James G. Wyly, III, PHELPS DUNBAR, LLP. General Electric Company, Defendant, represented by Edderek Linnel Cole, MARON MARVEL BRADLEY ANDERSON & TARDY, LLC.

MEMORANDUM OPINION AND ORDER GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT EDELBROCK CORPORATION

LOUIS GUIROLA, JR., District Judge.

BEFORE THE COURT is the [279] Motion for Summary Judgment filed by Defendant Edelbrock, LLC.[1] There has been no response. After due consideration, the Court finds no question of material fact for the jury. The Motion will be granted and Plaintiffs' claims against Edelbrock Corporation dismissed with prejudice.

BACKGROUND

In this products liability case, Plaintiffs allege that William Dickens developed mesothelioma as a result of exposure to asbestos from use of certain products in his work and personal life. Plaintiffs allege that Edelbrock "is being sued for asbestos-containing Edelbrock Carburetor Kits" that exposed William Dickens to asbestos while "performing maintenance and repairs to his personal vehicles and the vehicles of family and friends in Pascagoula, Mississippi." (Am. Compl. 4, 9, ECF No. 251.) Edelbrock moves for summary judgment arguing that William Dickens' deposition testimony shows that he cannot establish a products liability claim against it.

DISCUSSION

1. The Legal Standard

Summary judgment is mandated against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party has the burden of proof at trial. Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual controversies are resolved in favor of the nonmoving party, but only when there is an actual controversy; that is, when both parties have submitted evidence of contradictory facts. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

Despite having requested and received an extension of time to respond to Edelbrock's motion, Plaintiffs have not responded with any argument or evidence in opposition. Nevertheless, Edelbrock has the burden of establishing the absence of a genuine issue of material fact and, unless it has done so, the Court may not grant the Motion, regardless of whether any response was filed. Hibernia Nat. Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir. 1985). 2. Mississippi Products Liability

In Mississippi products liability actions, "it is incumbent upon the plaintiff. . . to show that the defendant's product was the cause of the plaintiff's injuries." Gardley-Starks v. Pfizer, Inc., 917 F. Supp. 2d 597, 602 (N.D. Miss. 2013) (quoting Moore ex rel. Moore v. Miss. Valley Gas Co., 863 So. 2d 43, 46 (Miss. 2003)). Regarding causation, the Mississippi Supreme Court expressly adopted the Lohrmann[2] test, requiring the plaintiff to show: (1) exposure to a particular product; (2) on a regular basis; (3) over an extended period of time; and (4) in proximity to where the plaintiff actually worked. Gorman-Rupp Co. v. Hall, 908 So. 2d 749, 757 (Miss. 2005).

3. Analysis

Edelbrock argues that Dickens' deposition testimony fails to show he was exposed to any asbestos from the only Edelbrock product he ever used: an Edelbrock intake manifold Dickens purchased new and installed in a car he owned from 1975 to 1979. (Dickens Dep. 163, 381-82, ECF No. 279-1.) Although he took it off and reinstalled it about eight times while performing work on the car's engine, he never altered the Edelbrock intake manifold. (Id. at 383-84.) Dickens worked on the car outdoors, in an area with no walls but partially covered by a roof. (Id. at 165.) Edelbrock points out that Dickens did not testify to tampering with Edelbrock's manifold so it would release friable asbestos, or breathing dust while performing work on the engine.

Edelbrock argues that Dickens' testimony does not establish that his handling of the intact intake manifold could have exposed him to asbestos, much less that it ultimately gave rise to asbestos exposure. But even assuming Dickens was exposed to asbestos from the intake manifold, Edelbrock argues that his exposure was not of sufficient duration, frequency, or proximity to satisfy the causation requirements of Mississippi law.

The Lohrmann test is "a de minimis rule in that a plaintiff is required to prove more than a casual or minimal contact with the product," Smith v. Union Carbide Corp., 130 So. 3d 66, 69 (Miss. 2013), which should be applied "in the context of summary judgment for asbestos cases." Gorman-Rupp Co., 908 So. 2d at 754-55. Failure to produce evidence of exposure at hazardous levels leaves a plaintiff "`unable to carry their burden on the issue of causation.'" Id. at 757 (quoting Chavers v. Gen. Motors Corp., 79 S.W. 3d 361, 369 (Ark. 2002)). In Lohrmann, the court found that exposure to an asbestos containing product ten to fifteen times during the course of employment was not sufficient to raise a permissible inference of causation. 782 F.2d at 1163. The facts established by the summary judgment evidence in this case show that Dickens' contact with Edelbrock's intake manifold — eight times in four years — was casual or minimal, and do not show a possibility that Dickens was exposed to asbestos at a hazardous level. Since plaintiffs have not alleged facts to support an inference of causation, Edelbrock is entitled to judgment as a matter of law.

IT IS THEREFORE ORDERED AND ADJUDGED that the [279] Motion for Summary Judgment filed by Defendant

Edelbrock, LLC, incorrectly sued as Edelbrock Corporation, is GRANTED. Plaintiffs' claims against Edelbrock Corporation are DISMISSED WITH PREJUDICE.

SO ORDERED AND ADJUDGED.

[1] Edelbrock, LLC alleges it has been erroneously sued as Edelbrock Corporation.

[2] Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).

Sources

• The opinion on Google Scholar
• Mississippi asbestos laws
• Mississippi asbestos exposure sites