Walls v. Ford Motor Company (M.D.N.C., Oct. 25, 2022, summary judgment)

Our plain-English summary of Walls v. Ford Motor Company (U.S. District Court, Middle District of North Carolina, October 25, 2022).

Laura Walls, individually and as executor of the estate of Robie Walls, sued Ford Motor Company and other defendants. She alleged that Mr. Walls developed mesothelioma from exposure to asbestos, including chrysotile-containing friction products. In February 2022 the court denied Ford's summary judgment motion on all claims except loss of consortium. Ford then asked the court to reconsider. It argued the court had wrongly said Ford did not object to two of Walls's experts, Dr. Brody and Mr. DePasquale. It also argued the court had not required proof of medical or scientific causation. The court denied the motion. It found that Ford's objection to those experts was a single footnote in a brief that elsewhere said Dr. Brody's testimony was not at issue. It said the cases Ford cited apply the same substantial-factor test the court had used. It noted that its later Daubert order allowed three other experts to give general causation testimony, and two of them to give specific causation testimony. Causation evidence was therefore sufficient to create a genuine factual dispute.

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: October 25, 2022
• Docket: No. 1:20-CV-98
• Stage: Summary judgment
• State: North Carolina

Outcome. The court denied Ford Motor Company's motion to reconsider the earlier partial denial of summary judgment, so Plaintiff Laura Walls's claims against Ford remained pending.

What the court held. A district court may revisit interlocutory rulings under Rule 54(b), but the asbestos causation test requires proof of actual exposure to the product and that the exposure was a substantial factor in causing the injury. Causation may be shown by direct or circumstantial evidence, and plaintiff's expert evidence supported a genuine fact issue.

Issues decided: Causation, Expert Testimony, Trial Procedure and Discovery.

The people and their exposure

• Robie W. Walls: mesothelioma; died

The defendants

• Ford Motor Company (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Walls v. Ford Motor Company (April 30, 2021). The magistrate judge granted in part and denied in part the plaintiff's motions to compel and for sanctions against CRA Trailers: CRA must give the plaintiff its Sales Index and pay part of her attorney's fees, but need not disclose net worth or former employees' contact information.
• Walls v. Ford Motor Company (September 27, 2021). The court granted in part and denied in part Pneumo Abex's motion to compel, ordering Plaintiff to give Abex and the joining defendants the grids and test results from her consulting expert's tissue analysis but not his opinions; the motions to join were granted and the parties were told to confer on expert fees.
• Walls v. Ford Motor Company (November 8, 2021). The court granted summary judgment to DCo and Eaton on all claims, and to Morse Tec on the punitive damages claim, because plaintiff Laura Walls did not oppose the motions or present supporting evidence.
• Walls v. Ford Motor Company (February 25, 2022). The federal district court granted in part and denied in part the plaintiff's motion for summary judgment on the defendants' affirmative defenses, so the plaintiff won on assumption of risk, sophisticated user, workers' compensation exclusivity and several others, while the manufacturers kept contributory negligence, product misuse and intervening cause (in part) for trial.
• Walls v. Ford Motor Company (February 25, 2022). The federal district court granted in part and denied in part six defendants' summary judgment motions and denied Abex's motion entirely: product liability claims survived against all seven defendants, punitive damages claims were dismissed against ZF, Carlisle, Strick, ArvinMeritor and Navistar, and loss of consortium was dismissed against Strick and Ford.
• Walls v. Ford Motor Company (August 11, 2022). The court granted in part and denied in part the parties' cross motions to exclude expert testimony before trial: plaintiff's experts may testify that each defendant's products contributed to and caused Mr. Walls' mesothelioma, but not that any exposure was a legal 'substantial factor'.
• Walls v. Ford Motor Company (September 30, 2022). The court granted defendant Pneumo Abex's motion in limine and Rule 702 motion, excluding documents, lay testimony and expert testimony about the mouse tumor data from Saranac Laboratory Experiment 774, a ruling against plaintiff Laura Walls.
• Walls v. Ford Motor Company (October 25, 2022). The court denied plaintiff Laura Walls's motion for leave to supplement the record with a supplemental expert report from Dr. Holstein in opposition to the defendants' Daubert motions.
• Walls v. Ford Motor Company (October 28, 2022). The court granted in part and denied in part the motions of defendants Abex and Strick to reconsider its expert rulings: it corrected a clerical error and clarified that Herfel and McCloskey may authenticate Navy documents, but it kept its exclusion of their other testimony as duplicative.
• Walls v. Ford Motor Company (November 30, 2023). The court denied Ford's renewed motion for directed verdict, granted its motion to amend the judgment so that $6,888,500 in settlements offset the $275,000 verdict, interest and costs (leaving $0 owed), and granted in part and denied in part its objection to costs.

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.
• Smith v. Schlage Lock Company, LLC (U.S. Court of Appeals, Fourth Circuit, 2021). The Fourth Circuit affirmed summary judgment for Schlage Lock Company and against Dorothy Smith, because there was no evidence Mr. Smith was exposed to asbestos at the plant and, in any event, Schlage Lock was not liable for exposure incident to an independent contractor's work.
• Pace v. Air & Liquid Systems Corporation (U.S. Court of Appeals, Fourth Circuit, 2016). The Fourth Circuit affirmed summary judgment for Crane Co., CBS Corporation (Westinghouse), Goulds Pumps and Air & Liquid Systems (Buffalo) against plaintiff Christine Pace, finding her evidence of exposure insufficient.

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.

LAURA M. WALLS, Individually and as Executor of the Estate of ROBIE W. WALLS, Plaintiff,

v.

FORD MOTOR COMPANY, etal., Defendants.

No. 1:20-CV-98.

October 25, 2022.

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

MEMORANDUM OPINION AND ORDER

LORETTA C. BIGGS, District Judge.

Before the Court is Defendant Ford's Motion for Reconsideration of the Order Denying in Part Ford Motor Company's Motion for Summary Judgment. (ECF No. 512.) For the reasons stated herein, Ford's motion will be denied.

On February 25, 2022, this Court entered a Memorandum Opinion and Order, (ECF No. 487), addressing seven different motions for summary judgment. In the February Order, the Court denied Ford's motion for summary judgment on all claims except Plaintiff's loss of consortium claim. (ECF No. 487 at 25-37.) It is the February Order that Defendant requests that this Court reconsider. Of significance here is that following the entry of February Order, this Court held a hearing on the parties' numerous Daubert motions pending before the Court, and on August 11, 2022, the Court entered a Memorandum Opinion and Order, (ECF No. 539), resolving many of the motions, some of which are pertinent to the arguments that Ford raises in the instant motion for reconsideration. The Court will consider Ford's motion in the context of these Orders. I. STANDARD OF REVIEW

Under Rule 54(b) of the Federal Rules of Civil Procedure, the "district court retains the power to reconsider and modify its interlocutory judgments, including partial summary judgments, at any time prior to final judgment when such is warranted." Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514-15 (4th Cir. 2003); see also Fed. R. Civ. P. 54(b) ("[A]ny order. . . that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. . . may be revised at any time before the entry of a judgment. . . ."). "Said power is committed to the discretion of the district court" and may be exercised as justice requires. Am. Canoe Ass'n, 326 F.3d at 515.

II. DISCUSSION

In requesting that this Court reconsider its February Order, Ford argues that the Court made clear errors of both fact and law in rendering its decision. (ECF No. 513 at 1.)

As to the error of fact, Ford seizes on the Court's statement that "the direct and circumstantial evidence discussed herein— including the general causation expert testimony of DePasquale and Brody to which [Ford] has not objected—is sufficient on its own to create a genuine issue of material fact as to whether Ford's products were a substantial cause of Plaintiff's mesothelioma."[1] (ECF No. 487 at 28.) Ford maintains that it did object to both DePasquale and Brody's testimony in its omnibus memorandum in support of its Daubert motions. (ECF Nos. 513 at 1, 11-14; 477.) Notably, the extent of Ford's objection is a single footnote in that memorandum which states: "Should Dr. Brody or Mr. DePasquale attempt to offer opinions that exposure to chrysotile-containing friction products could or did cause Mr. Walls' mesothelioma, such opinions should be excluded for the reasons set forth herein." (ECF No. 477 at 1 n.1.)

As to the error of law, Ford contends that this Court misconstrued Fourth Circuit and North Carolina law by not addressing whether Plaintiff adequately established "medical" or "scientific" causation. (ECF No. 513 at 4.) Ford acknowledges that this Court aptly applied the "frequency, regularity, proximity" test articulated in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986). However, Ford argues that this test "is only half of the equation as it does not address the

essential element of scientific causation." (ECF No. 513 at 4 (emphasis omitted).) Ford maintains that "[e]ven if an exposure is deemed `substantial' because it occurred with frequency, regularity, and in proximity to Mr. Walls, . . . Plaintiff must still establish that the exposure could have and did actually cause Mr. Walls' mesothelioma — i.e., general and specific causation — in order to survive summary judgment." (Id.) In other words, Ford argues this Court did not apply a "but-for" causation test. (Id. at 5 ("Plaintiff must demonstrate that Mr. Walls' alleged exposure to Ford's products was a "but for" cause of his mesothelioma—i.e., that his mesothelioma would not have occurred in absence of his alleged exposures to Ford products.").)

Additionally, Ford argues the Court's statement of law that that "causation in asbestos cases may be established through direct or circumstantial evidence" is not accurate in the case at hand. (ECF Nos. 487 at 4; 513 at 7.) Ford contends that this Court failed to recognize Fourth Circuit and North Carolina law holding that "plaintiffs in asbestos cases (and other products liability cases) must come forward with reliable expert opinions as to both general and specific causation in order to survive summary judgment." (ECF No. 513 at 7.) Consequently, Ford argues that summary judgment should have been granted in its favor as to all claims because "[P]laintiff's experts cannot offer reliable opinions to establish both general and specific causation." (Id. at 10.) Ford raises criticisms of Dr. Brody and Mr. DePasquale which, contrary to Ford's contentions, do not appear to have been fully fleshed out in its memorandum in support of its Daubert motions. (Id. at 11-14; ECF No. 477 at 1 n.1, 20.)

The Court first reiterates the well-established asbestos causation test it applied in its summary judgment order. That test requires a plaintiff to prove (1) that he was actually exposed to the alleged offending products and (2) that exposure was a substantial factor causing the plaintiff's injury. (ECF No. 487 at 3 (quoting Smith v. Schlage Lock Co., LLC, 986 F.3d 482, 487 (4th Cir. 2021) and Finch v. Covil Corp., 972 F.3d 507, 512 (4th Cir. 2020)).)

Cases cited by Ford, like Connor v. Covil Corp., 996 F.3d 143 (4th Cir. 2021), simply confirm the same substantial causation test articulated by this Court. (ECF No. 513 at 4); see also Connor, 996 F.3d at 148-49. Judge Flanagan's opinions in the Yates line of cases, which Ford also relies on, refer to that same test as well. Yates v. Air & Liquid Sys. Corp., No. 12-CV-752, 2014 WL 4923603, at [*22] (E.D.N.C. Sept. 30, 2014), on reconsideration sub nom. Yates v. Ford Motor Co., No. 12-CV-752, 2015 WL 9222834 (E.D.N.C. Dec. 17, 2015) ("North Carolina requires that. . . `[t]he plaintiff. . . prove more than a casual or minimum contact with the product containing asbestos. . . [and] 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.'" (quoting Jones v. Owens-Corning Fiberglas Corp., 69 F.3d 712, 716 (4th Cir. 1995))).

This Court also noted how causation in asbestos cases may be established through direct or circumstantial evidence. (ECF No. 487 at 3-4 (citing Pace v. Air & Liquid Sys. Corp., 642 F. App'x 244, 253 (4th Cir. 2016)).) While the Court's denial of summary judgment at that time was based on direct and circumstantial evidence, (ECF No. 487 at 28), the Court notes that, in light of its Daubert order, Plaintiff does in fact offer significant expert causation evidence, (ECF No. 539 at 12, 18, 24). Thus, Ford's arguments that Plaintiff lacks the requisite expert opinions needed to show causation are inapposite. Additionally, the Court finds Ford's characterization of its prior objection to Dr. Brody and Mr. DePasquale's testimony misleading. Apart from only mentioning its objection to those two experts in a footnote in its Daubert brief focused on Drs. Holstein, Maddox, and Finkelstein, (ECF No. 477 at 1 n.1), Ford, in that same brief, makes a statement that Dr. Brody's expert testimony "is not at issue in this motion," (id. at 20 (emphasis added)). The Court cannot construe a footnote objection and single mention of Dr. Brody (who Ford acknowledged was not at issue in that motion) as raising any meaningful challenge to their testimony, let alone warranting reconsideration of this Court's previous order. Ford also raises concerns as to whether Dr. Brody and Mr. DePasquale actually offer general causation testimony. (ECF No. 513 at 11.) Regardless of how either party characterizes their testimony/evidence, the Court, having now issued its Daubert order as to Drs. Holstein, Maddox, and Finkelstein, (ECF No. 539), takes this opportunity to reiterate that Plaintiff has "create[d] a genuine issue of material fact as to whether Ford's products were a substantial cause of Plaintiff's mesothelioma." (ECF No. 487 at 28.) In its Daubert order, this Court ruled that it would allow Drs. Holstein, Maddox, and Finkelstein "to offer general causation testimony," and further permitted Holstein and Maddox "to opine that each Defendant's products scientifically contributed to and caused Walls' mesothelioma," (i.e., to offer specific causation testimony). (ECF No. 539 at 24.) Accordingly, the Court declines to reconsider its order denying Ford's motion for summary judgment in part. (ECF No. 487 at 25-37.)

For the reasons stated herein, the Court enters the following:

ORDER

IT IS THEREFORE ORDERED that Defendant Ford's Motion for Reconsideration of the Order Denying in Part Ford Motor Company's Motion for Summary Judgment, (ECF No. 512), is DENIED.

[1] The Court acknowledges and corrects its typographical error which refers to Defendant Strick instead of Defendant Ford. (ECF No. 487 at 28.)

Sources

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