Queen v. CBS Corporation (2017)

Our plain-English summary of Queen v. CBS Corporation (U.S. District Court, Middle District of North Carolina, December 7, 2017).

Jonathan Queen, as executor of the estate of William Harold Queen, sued CBS Corporation, Union Carbide Corporation and other defendants in federal court in North Carolina. Queen had mesothelioma, which the complaint blamed on asbestos exposure while he worked as a laborer at DuPont from 1964 to 1991, including time spent around insulators who mixed and cut pipe and equipment insulation. Union Carbide moved for summary judgment, and the plaintiff did not respond despite a warning. The court still reviewed the record to confirm the motion was warranted. Two co-workers the plaintiff offered for deposition both said they knew of no asbestos exposure of Queen connected to Union Carbide, and no other evidence tied Queen to a Union Carbide product. Applying Fourth Circuit and North Carolina law, the court said a plaintiff must show regular exposure to the specific product over an extended period near where he worked. It granted summary judgment and dismissed the claims against Union Carbide 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, Middle District of North Carolina
• Decided: December 7, 2017
• Docket: No. 1:16-CV-00330
• Stage: Summary judgment
• State: North Carolina

Outcome. The court granted Union Carbide Corporation's unopposed motion for summary judgment and dismissed the executor's claims against it with prejudice, because there was no evidence Queen was exposed to a Union Carbide product.

What the court held. Under Fourth Circuit and North Carolina law, a plaintiff must show exposure to the defendant's specific product regularly over an extended time near where the plaintiff worked; with no evidence of exposure, the product cannot be a substantial factor in causing the disease.

Issues decided: Causation, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• William Harold Queen: mesothelioma; died

Who	Work	Where	When	Products
William Harold Queen	laborer	DuPont	1964-1991	pipe and block insulation

The defendants

• Union Carbide Corporation (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• 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.

JONATHAN A. QUEEN, as Executor of the Estate of WILLIAM HAROLD QUEEN, Deceased,

Plaintiffs,

v.

CBS CORPORATION, etal., Defendants.

No. 1:16-CV-00330.

December 7, 2017.

United States District Court, M.D. North Carolina.

JONATHAN A. QUEEN, AS EXECUTOR OF THE ESTATE OF WILLIAM HARLD QUEEN, DECEASED, Plaintiff,

represented by KEVIN W. PAUL, SIMON GREENSTONE PANATIER BARTLETT, PC.

JONATHAN A. QUEEN, AS EXECUTOR OF THE ESTATE OF WILLIAM HARLD QUEEN, DECEASED, Plaintiff,

represented by JANET WARD BLACK, WARD BLACK LAW.

DANIEL INTERNATIONAL CORPORATION, Defendant, represented by MOFFATT G. MCDONALD, HAYNSWORTH

SINKLER BOYD, P.A., SCOTT E. FRICK, HAYNSWORTH SINKLER BOYD, P.A., W. DAVID CONNER, HAYNSWORTH

SINKLER BOYD, P.A. & CHARLES M. SPRINKLE, III, HAYNSWORTH SINKLER BOYD, P.A..

GENERAL ELECTRIC COMPANY, Defendant, represented by JENNIFER M. TECHMAN, EVERT WEATHERSBY HOUFF.

GOULDS PUMPS, INCORPORATED, Defendant, represented by TRACY E. TOMLIN, NELSON MULLINS RILEY &

SCARBOROUGH LLP, TRAVIS ANDREW BUSTAMANTE, NELSON MULLINS RILEY & SCARBOROUGH LLP & WILLIAM

MICHAEL STARR, NELSON MULLINS RILEY & SCARBOROUGH LLP.

METROPOLITAN LIFE INSURANCE COMPANY, Defendant, represented by KEITH E. COLTRAIN, WALL TEMPLETON &

HALDRUP, P.A..

MEMORANDUM ORDER

THOMAS D. SCHROEDER, District Judge.

Before the court is the motion of Defendant Union Carbide Corporation for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Doc. 69.) Plaintiff has not filed a response and has been warned that failure to respond will result in a decision without hearing. (Doc. 77.) For the reasons set forth below, the motion will be granted. I. BACKGROUND

Plaintiff's decedent, William Harold Queen, contracted mesothelioma allegedly as a result of exposure to asbestos-containing products, including during his employment as a laborer at DuPont from 1964 until 1991. (Doc. 1 ¶ 13(a).) More specifically, Plaintiff alleges that Queen would have been exposed to asbestos both while working as a laborer and while working around insulators who mixed, cut, and manipulated pipe and equipment insulation. (Id.) Plaintiff alleges negligence, product liability, breach of implied warranty, willful and wanton conduct, failure to warn, and conspiracy. (Id. ¶¶ 34, 42, 48, 55, 64, 69.)

Queen's two co-workers, offered for deposition in the case by Plaintiff, both testified that they are unaware of any asbestos exposure Queen had related to Union Carbide. (Doc. 70-2 at 3; Doc. 70-3 at 3.) There is no other evidence of any exposure of Queen to asbestos manufactured, distributed, or handled by Union Carbide. Based on this dearth of evidence, Union Carbide contends it is entitled to summary judgment. (Doc. 70 at 6.)

II. ANALYSIS

Summary judgment is appropriate where 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." Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 325 (1986). For the purposes of this motion, the court draws all inferences in favor of Plaintiff as the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Here, Plaintiff has failed to respond to Union Carbide's motion for summary judgment. Under the court's Local Rule 7.3(k), " [t]he failure to file a brief or response within the time period specified in this rule shall constitute a waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect." Where there is such a failure, the rule provides further that "the motion will be considered and decided as an uncontested motion, and ordinarily will be granted without further notice." L.R. 7.3(k).

However, because even an unopposed dispositive motion must be supported by the record, the court must satisfy itself that the motion is warranted. See Robinson v. Wix Filtration Corp. LLC, 599 F.3d 403, 409 n.8 (4th Cir. 2010) ("[I]n considering a motion for summary judgment, the district court `must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law.'" (quoting Custer v. Pan Am. Life Ins. Co., 12 F.3d 410, 416 (4th Cir. 1993))); accord Gardendance, Inc. v. Woodstock Copperworks, Ltd., 230 F.R.D. 438, 449 (M.D.N.C. 2005) ("As with summary judgment motions, a court does not grant a motion for dismissal merely because it is uncontested. Rather, a district court should review a motion to dismiss on its merits to determine whether the pleadings are sufficient.").

Union Carbide has shown that there is no genuine dispute of any material fact and that it is entitled to judgment as a matter of law.

Plaintiff's claims rest on this court's diversity jurisdiction. (Doc. 1 ¶ 19.) Union Carbide argues that under North Carolina and Fourth Circuit law, Plaintiff cannot show that exposure to its product was a proximate cause of Queen's injury. (Doc. 70 at 6.) In Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162 (4th Cir. 1986) (applying Maryland law), the court held that a plaintiff must show that his exposure to a defendant's product was a "substantial factor" in causing the disease. The court articulated this to mean that a plaintiff must present "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." Id. at 1162-63. This is consistent with the requirements of North Carolina law. See Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 n.2 (4th Cir. 1995) (finding Lohrmann consistent with North Carolina law, citing North Carolina law).

It is axiomatic that in the absence of any demonstrated exposure, a defendant's product cannot be a factor, much less a substantial factor, in a plaintiff's disease. Because Plaintiff here has not provided any evidence that Queen was exposed to any Union Carbide asbestos-containing product, Plaintiff's claims fail, and Union Carbide's motion for summary judgment must be granted.

III. CONCLUSION

For the reasons stated,

IT IS THEREFORE ORDERED that Defendant Union Carbide's motion for summary judgment (Doc. 69) is GRANTED, and the claims against Union Carbide shall be DISMISSED WITH PREJUDICE.

Sources

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