Foushee v. RT Vanderbilt Holding Company, Inc. (2023)

Our plain-English summary of Foushee v. RT Vanderbilt Holding Company, Inc. (U.S. Court of Appeals, Fourth Circuit, April 11, 2023).

Belinda Foushee, as personal representative of her daughter Anneka Foushee's estate, sued R.T. Vanderbilt Holding Company and Vanderbilt Minerals, LLC. She claimed negligent failure to warn, breach of implied warranty, negligent design, gross negligence and wrongful death. She alleged her daughter developed mesothelioma and died after exposure to the companies' asbestos-containing product. The opinion does not describe where or how the exposure happened. The federal district court in North Carolina granted summary judgment to the companies, and the plaintiff appealed. The Fourth Circuit applied North Carolina law, under which a plaintiff must show the defendant's conduct was a substantial factor in causing the death. That requires evidence of exposure to a specific product on a regular basis over an extended period, close to where the person worked (the Lohrmann test). The court reviewed the record and concluded the plaintiff had not shown enough exposure to survive summary judgment. It affirmed in a short unpublished per curiam opinion.

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. Court of Appeals, Fourth Circuit
• Decided: April 11, 2023
• Docket: No. 21-1074
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: North Carolina

Outcome. The Fourth Circuit affirmed summary judgment for R.T. Vanderbilt Holding Company and Vanderbilt Minerals, holding the plaintiff did not show enough exposure to survive summary judgment.

What the court held. Under North Carolina law, a plaintiff must show substantial-factor causation through the Lohrmann frequency, regularity and proximity test, meaning evidence of exposure to a specific product on a regular basis over an extended period in proximity to where the person worked.

Issues decided: Causation, Product Identification.

The people and their exposure

• Anneka Foushee: mesothelioma; died

The defendants

• R.T. Vanderbilt Holding Company, Inc. (manufacturer)
• Vanderbilt Minerals, LLC (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Connor v. Covil Corporation (U.S. Court of Appeals, Fourth Circuit, 2021). The Fourth Circuit affirmed summary judgment for Covil Corporation, holding that Darrell Connor, suing for his father's death, had not shown enough exposure to Covil's asbestos insulation.
• 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.

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.

BELINDA LIPSCOMB FOUSHEE, as Personal Representative of the Estate of Anneka Foushee,

Plaintiff-Appellant,

v.

R.T. VANDERBILT HOLDING COMPANY, INC., Individually and as Successor in Interest to R.T.

Vanderbilt Company, Inc.; VANDERBILT MINERALS, LLC, f/k/a R.T. Vanderbilt Company, Inc.,

Individually and as Successor in Interest to International Talc Co., Defendants-Appellees.

No. 21-1074.

Submitted: March 31, 2023.

Decided: April 11, 2023.

United States Court of Appeals, Fourth Circuit.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Richard E. Myers, II, Chief District Judge. (5:17-cv-00071-M).

ON BRIEF: Donald P. Blydenburgh, SIMMONS HANLY CONROY, New York, New York; William M. Graham, WALLACE & GRAHAM, P.A., Salisbury, North Carolina, for Appellant.

Gerald Anderson Stein, II, Michael Duane Jones, HEDRICK GARDNER KINCHELOE & GAROFALO, LLP, Charlotte, North Carolina; Pratik A. Shah, Lide E. Paterno, AKIN GUMP STRAUSS HAUER & FELD LLP, Washington, D.C., for Appellees. Before WILKINSON, DIAZ, and QUATTLEBAUM, Circuit Judges.

Affirmed by unpublished per curiam opinion.

UNPUBLISHED

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM.

Belinda Lipscomb Foushee ("Plaintiff") sued R.T. Vanderbilt Holding Company and Vanderbilt Minerals, LLC (collectively, "Defendants"), claiming negligent failure to warn, breach of implied warranty, negligent design, gross negligence, and wrongful death. Plaintiff alleged that her daughter, Anneka Foushee ("Foushee") contracted and ultimately died from mesothelioma after she was exposed to Defendants' asbestos-containing product. The district court granted summary judgment to Defendants, and Plaintiff appeals. Finding no error, we affirm.

We review de novo the district court's order granting summary judgment. Calloway v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020). "A district court `shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568 (4th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). "A dispute is genuine if a reasonable jury could return a verdict for the nonmoving party." Id. (internal quotation marks omitted).

Because this case involves state-law tort claims, we apply North Carolina law. Connor v. Covil Corp., 996 F.3d 143, 148 (4th Cir. 2021). To establish that Defendants are liable for asbestos exposure under North Carolina law, Plaintiff "must prove" that Defendants' "alleged misconduct was a substantial factor causing" Foushee's death. Id. To do so, Plaintiff must satisfy "the `frequency, regularity, and proximity' test" set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986). Connor, 996 F.3d at 149. Under this test, "[t]o survive summary judgment on the issue of substantial factor causation, . . . [P]laintiff must introduce `evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where [Foushee] actually worked.'" Id. (quoting Lohrmann, 782 F.2d at 1162-63).

Our review of the record convinces us that Plaintiff did not make a sufficient showing of exposure to survive summary judgment. Accordingly, we affirm the district court's order granting Defendants' motion for summary judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED.

Sources

• The opinion on Google Scholar
• North Carolina asbestos laws
• North Carolina asbestos exposure sites