Filed: Mar. 30, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2416 CHRISTINE P. PACE, Individually and as Personal Representative of the Estate of William L. Pace, Deceased, Plaintiff – Appellant, v. AIR & LIQUID SYSTEMS CORPORATION, Successor by merger Buffalo Pumps Inc.; CBS CORPORATION, f/k/a Viacom, Inc., f/k/a Westinghouse; CRANE CO; GORMAN RUPP COMPANY; GOULDS PUMPS, INCORPORATED, Defendants – Appellees, and 3M COMPANY, a/k/a Minnesota Mining & Manufacturing Company; AW CHESTERT
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-2416 CHRISTINE P. PACE, Individually and as Personal Representative of the Estate of William L. Pace, Deceased, Plaintiff – Appellant, v. AIR & LIQUID SYSTEMS CORPORATION, Successor by merger Buffalo Pumps Inc.; CBS CORPORATION, f/k/a Viacom, Inc., f/k/a Westinghouse; CRANE CO; GORMAN RUPP COMPANY; GOULDS PUMPS, INCORPORATED, Defendants – Appellees, and 3M COMPANY, a/k/a Minnesota Mining & Manufacturing Company; AW CHESTERTO..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-2416
CHRISTINE P. PACE, Individually and as Personal
Representative of the Estate of William L. Pace, Deceased,
Plaintiff – Appellant,
v.
AIR & LIQUID SYSTEMS CORPORATION, Successor by merger
Buffalo Pumps Inc.; CBS CORPORATION, f/k/a Viacom, Inc.,
f/k/a Westinghouse; CRANE CO; GORMAN RUPP COMPANY; GOULDS
PUMPS, INCORPORATED,
Defendants – Appellees,
and
3M COMPANY, a/k/a Minnesota Mining & Manufacturing Company;
AW CHESTERTON COMPANY; ELLIOTT COMPANY, f/k/a Elliott
Turbomachinery Co. Inc.; FISHER CONTROLS INTERNATIONAL LLC;
GENERAL ELECTRIC COMPANY; GOODRICH CORPORATION, f/k/a BF
Goodrich Company; IMO INDUSTRIES, INCORPORATED,
individually and as successor to Transamerica Delaval Inc.
and IMO Delaval Inc.; INGERSOLL-RAND COMPANY; ITT
CORPORATION, d/b/a Bell & Gossett Pumps; MCNALLY
INDUSTRIES, INC.; METROPOLITAN LIFE INSURANCE COMPANY;
MILWAUKEE VALVE COMPANY; NATIONAL SERVICE INDUSTRIES, INC.,
f/k/a North Brothers, Incorporated; PATTERSON PUMP COMPANY;
SEPCO CORPORATION; STERLING FLUID SYSTEMS USA LLC; SVI
CORPORATION, f/k/a Stockham Valves & Fittings, f/k/a Marlin
Valve; UNIROYAL, INCORPORATED; VIKING PUMP, INCORPORATED;
HENRY VOGT MACHINE COMPANY; WARREN PUMPS, INCORPORATED, a
member of the Colfax Pump Group; JOHN CRANE INCORPORATED;
YARWAY CORPORATION; BAYER CROPSCIENCE, INCORPORATED,
Successor in Interest, Amchem Products Inc.; FOSTER WHEELER
ENERGY CORPORATION,
Defendants.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Bristow Marchant, Magistrate
Judge. (2:11-cv-02688-BM)
Argued: January 28, 2016 Decided: March 30, 2016
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Judge Niemeyer and Judge King joined.
ARGUED: William Christopher Swett, MOTLEY RICE, LLP, Mt.
Pleasant, South Carolina, for Appellant. Emily Janney Kennedy,
JONES DAY, Washington, D.C.; Michael James Ross, K&L GATES, LLP,
Pittsburgh, Pennsylvania; Scott Edward Frick, HAYNSWORTH,
SINKLER & BOYD, PA, Greenville, South Carolina; G. Mark
Phillips, NELSON MULLINS RILEY & SCARBOROUGH, LLP, Charleston,
South Carolina, for Appellees. ON BRIEF: Shay Dvoretzky, JONES
DAY, Washington, D.C., for Appellee CBS Corporation. James Bruce
Glenn, Robert O. Meriwether, NELSON MULLINS RILEY & SCARBOROUGH,
LLP, Charleston, South Carolina, for Appellee Air & Liquid
Systems Corporation. Nicholas P. Vari, K&L GATES, LLP,
Pittsburgh, Pennsylvania, for Appellee Crane Co. William David
Connor, Moffatt Grier McDonald, HAYNSWORTH, SINKLER & BOYD, PA,
Greenville, South Carolina, for Appellee Goulds Pumps, Inc.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
After William L. Pace (“Pace”) was diagnosed with
mesothelioma on July 12, 2011, he and his spouse, Christine P.
Pace (“Plaintiff”), filed suit against thirty-one companies
alleging personal injuries due to exposure to the defendants’
asbestos and asbestos-containing products. A few months after
filing suit, Pace died from his disease, and his wife continued
with the case both individually and as personal representative
of her deceased husband’s estate. The district court granted
summary judgment to a number of defendants, four of which are
the subject of this appeal: Crane Company (“Crane Co.”), CBS
Corporation (“Westinghouse”), Goulds Pumps, Inc. (“Goulds”), and
Air & Liquid Systems Corporation (“Buffalo”) (collectively,
“Defendants”).
On appeal, Plaintiff contends that the district court erred
in granting summary judgment, arguing that Plaintiff has
provided sufficient evidence to support a reasonable inference
that Defendants’ products were a substantial cause of Pace’s
mesothelioma. Because we agree with the district court that
Plaintiff has failed to meet her burden under applicable South
Carolina law, we affirm as to each of the four Defendants.
3
I.
William L. Pace worked at Charleston Naval Shipyard in
Charleston, South Carolina, from 1972 to 1995. He was an
apprentice machinist from 1972 to 1975, during which time he
spent one year working in Shop 31 at the shipyard. After
completing his apprenticeship, he worked as a marine machinist.
In this capacity, Pace primarily worked on pumps and valves,
responsible for both repair and installation. He also worked on
turbines, boilers, and “all associated machinery used aboard
naval vessels.” J.A. 1246. 1 In the shipyard, both asbestos-
containing and non-asbestos-containing gaskets, insulation, and
packing materials were used with the pumps and valves. Pace
attested in a sworn affidavit that he “regularly worked with or
in the vicinity of asbestos containing products” and that the
“cutting, handling and application of these products produced a
visible dust” that he inhaled. Id.
This appeal concerns asbestos dust that Pace allegedly
inhaled while he was working in Shop 31 and Shop 38. 2 As an
1 “J.A.” refers to the Joint Appendix filed by the parties
in this appeal.
2 Pace has not challenged on appeal the district court’s
conclusions regarding Pace’s alleged exposure to asbestos while
aboard ships. Therefore, although much of the evidence that
Plaintiff cites to in her briefs relates to Pace’s exposure
aboard ships, we are only concerned with this evidence insofar
as it relates to asbestos exposure that occurred on land in
(Continued)
4
apprentice in Shop 31, Pace worked on pumps, motors, and valves.
When a pump came into Shop 31, it typically still had thermal
insulation on it. Pace’s job as a machinist included using a
needle gun to remove the insulation.
From 1972 to the mid-1980s, except for the year that he was
in Shop 31, Pace worked out of Shop 38. Significantly, working
out of Shop 38 involved spending part of the day working aboard
ships and part of the day in the shop on land. The shop itself
was “a big warehouse,” composed of “two big old buildings
probably two football fields each,” where approximately 400-500
machinists and their apprentices worked. J.A. 359; 809. As a
marine machinist based out of Shop 38, Pace assembled and
disassembled valves, pumps, and turbines. He also cleaned
valves, turbine casings, and packing glands.
Pace stopped working at the shipyard in 1995 and was
diagnosed with mesothelioma on July 12, 2011. Shortly
thereafter, he filed suit against a number of defendants in the
South Carolina Court of Common Pleas for Charleston County,
alleging personal injury due to exposure to “asbestos and
asbestos-related materials mined, manufactured, processed,
imported, converted, compounded and/or sold by the defendants.”
Shops 31 and 38.
5
J.A. 59. In addition, Plaintiff sued for “loss of the
consortium, society, companionship, fellowship and other
valuable services of her husband.” J.A. 63.
The case was removed to the United States District Court
for the District of South Carolina and was then transferred by
the Judicial Panel on Multidistrict Litigation (“JPML”) to the
Eastern District of Pennsylvania (the “transferee court”) as
part of Asbestos Multidistrict Litigation No. 875 (“MDL
No. 875”), pursuant to 28 U.S.C. § 1407(a). The transferee
court granted summary judgment to Defendants Crane Co.,
Westinghouse, Goulds, and Buffalo, among others, because of
Plaintiff’s failure to provide sufficient evidence to support a
reasonable inference that Defendants’ products substantially
caused Pace’s mesothelioma.
Following the conclusion of all pre-trial proceedings, the
transferee court issued a conditional remand order and the case
was transferred back to the District of South Carolina. The
district court entered final judgment on November 25, 2014.
Plaintiff timely appealed the orders granting summary
judgment to Crane Co., Westinghouse, Goulds, and Buffalo,
arguing that she had indeed presented sufficient evidence to
withstand summary judgment. In response, Defendants argue that
the Fourth Circuit does not have jurisdiction over this case
because the summary judgment orders were entered by the Eastern
6
District of Pennsylvania, which lies within the jurisdiction of
the Third Circuit. Additionally, they argue that even if this
court does have jurisdiction, the district court did not err in
concluding that Plaintiff failed to demonstrate that Defendants’
products substantially caused Pace’s mesothelioma.
II.
We address the jurisdictional question first. Defendants
argue that because Plaintiff is appealing summary judgment
orders entered by the Eastern District of Pennsylvania, this
court lacks jurisdiction. We disagree.
This case is an appeal from a final judgment that was
entered by the District Court for the District of South
Carolina. “The courts of appeals have jurisdiction over
‘appeals from all final decisions of the district courts of the
United States.’” Hudson v. Pittsylvania Cty., 774 F.3d 231, 234
(4th Cir. 2014)(quoting 28 U.S.C. § 1291). Generally, “a
district court’s decision is final if it ‘ends the litigation on
the merits and leaves nothing for the court to do but execute
the judgment.’”
Id. (quoting United States v. Modanlo,
762 F.3d
403, 409 (4th Cir. 2014)). After the District of South Carolina
entered final judgment in this case, this court became the
proper forum for an appeal.
7
It is of no moment that Plaintiff’s appeal centers on
summary judgment orders that were issued by a district court
within a different circuit as part of earlier proceedings in MDL
No. 875. In federal litigation, “the general rule [is] that a
party is entitled to a single appeal, to be deferred until final
judgment has been entered, in which claims of district court
error at any stage of the litigation may be ventilated.”
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994) (emphasis added) (citation omitted). Plaintiff waited to
file this appeal until after final judgment was entered, and did
so in the circuit that encompassed the district court that had
entered that judgment. We therefore conclude that this court
has jurisdiction to hear this appeal.
III.
We next consider Plaintiff’s argument that the district
court erred in granting summary judgment to Defendants. This
court reviews an order granting summary judgment de novo. Lee
Graham Shopping Ctr., LLC v. Estate of Kirsch, 777 F.3d 678, 681
(4th Cir. 2015). On a motion for summary judgment, we view “all
facts and reasonable inferences in the light most favorable to
the non-moving party.” Dulaney v. Packaging Corp. of Am.,
673 F.3d 323, 330 (4th Cir. 2012). A district court “shall
grant summary judgment if the movant shows that there is no
8
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).
Because this case involves state-law tort claims, we apply
South Carolina law. Laurens Elec. Coop., Inc. v. Altec Indus.,
Inc., 889 F.2d 1323, 1324 (1989). To establish that Defendants
are liable for asbestos exposure under South Carolina law,
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) (applying Maryland
tort law). The Supreme Court of South Carolina adopted this
test in Henderson v. Allied Signal, Inc., a case concerning a
man who had developed mesothelioma and other asbestos-related
diseases.
644 S.E.2d 724, 727 (S.C. 2007). Under this test,
“[t]o support a reasonable inference of substantial causation
from circumstantial evidence, there must be 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.” 3
Henderson, 644 S.E.2d at 185 (quoting
Lohrmann,
782 F.2d at 1162) (emphasis added).
3Plaintiff argues that the Lohrmann test “must be applied
less rigidly in mesothelioma cases than in cases involving non-
malignant asbestosis, which develops after a more substantial
exposure to asbestos.” Appellant’s Br. at 20. Given that
Henderson, the very case that adopted this test in South
(Continued)
9
Applying the Lohrmann test, we consider the evidence
provided against Crane Co., Westinghouse, Goulds, and Buffalo in
turn. We note that Plaintiff faces particular challenges on
these facts because she must isolate Pace’s exposure to solely
his areas of work in an otherwise expansive work environment on
land. As we explain below, we are constrained to conclude that
no reasonable jury could find that any of the Defendants’
products substantially caused Pace’s mesothelioma under the
Lohrmann test. 4
Carolina, concerned a man who had developed mesothelioma, we
find this argument unpersuasive.
4We note at the outset that Defendants challenge the
admissibility of a number of the depositions that Plaintiff
relies on. See, e.g., Appellees’ Br. at 41. Because we
conclude that Plaintiff has failed to provide sufficient
evidence as to any of her claims even if this testimony is
considered, we find it unnecessary to rule on the admissibility
of specific testimony.
For the same reason, we also find it unnecessary to reach
the merits of Defendants’ argument that “summary judgment was
also proper on the independent ground that defendants neither
manufactured nor supplied any of the asbestos products that
allegedly injured Mr. Pace.” See Appellees’ Br. at 48-63.
Finally, Defendants point out that for certain depositions,
Plaintiff has included in the Joint Appendix larger excerpts
than were originally before the district court. To the extent
that Plaintiff has included in the Joint Appendix deposition
testimony that was not properly presented below, we decline to
consider it here. See Fed. R. App. P. 10(e)(2).
10
A.
We first consider whether Plaintiff introduced sufficient
evidence to support her claim against Crane Co., a manufacturer
of pumps found in the Charleston Naval Shipyard. The district
court found that “no reasonable jury could conclude from the
evidence that Pace was exposed to asbestos from [gaskets,
packing, or insulation] manufactured or supplied by Defendant
Crane Co, [sic] or used in connection with Crane Co. pumps or
valves, such that it was a substantial cause of the development
of his mesothelioma.” J.A. 1964-65. Because there was “no
evidence” that specifically connected Pace to Crane Co.’s
asbestos-containing pumps, the district court granted Crane
Co.’s motion for summary judgment. J.A. 1963-65.
Plaintiff argues that the district court erred and that
Pace’s exposure to Crane Co.’s asbestos-containing pumps was a
substantial cause of his mesothelioma. Because we conclude that
Plaintiff has not shown that any Crane Co. pumps that Pace might
have worked on or near contained asbestos, we must disagree.
Plaintiff has introduced evidence showing that Pace worked
in Shop 38 assembling pumps, and that some of the pumps in the
shipyard contained asbestos. Plaintiff has also provided some
evidence that Pace worked on Crane Co. pumps in particular,
relying in large part on the deposition of Raymond Lee, Pace’s
coworker in Shop 38 from 1972 until the mid-1980s. Lee
11
testified that Pace assembled pumps in Shop 38 and that the
manufacturers of some of the pumps that Pace “may have
assembled” there included DeLaval, Werner, and Crane. J.A. 688.
Plaintiff also relies on Lee’s testimony in claiming that
Pace worked on Crane Co. pumps “a lot.” Appellant’s Br. at 23.
However, when Lee’s statement is read in context, it is clear
that he based this conclusion on speculation. When questioned
why he believed that Pace worked on Crane Co. pumps “a lot,” Lee
responded “[b]ecause, I mean, he worked in the shipyard for
20 something years.” J.A. 721. He conceded that “supervisors
like to try to keep you separated” and said that “I can’t tell
you a specific pump or ship that I can remember standing there
and seeing him work on it or--but I just know that he did, and I
have seen it.” J.A. 721-22.
Even if it could be inferred from this testimony that Pace
worked on Crane Co. pumps regularly, Plaintiff has not shown
that Pace worked on Crane Co. pumps containing asbestos. The
record is clear that both asbestos-containing and non-asbestos-
containing gaskets, packing, and insulation were used in
connection with pumps in the shipyard. The only evidence that
Plaintiff offers to show that Crane Co. pumps contained asbestos
are advertisements for Crane Co. products containing asbestos.
Plaintiff points to two advertisements in particular: the first
for “asbestos packed iron cocks” and the second for Cranite
12
sheet packing. J.A. 1393; 1397. Plaintiff has neither
established, nor argued, that these products are in any way
related to products that Pace worked on. Moreover, other Crane
Co. advertisements in the record establish that the company sold
varieties of certain products with asbestos and varieties
without. See, e.g., J.A. 1394 (advertising different varieties
of Crane Co. insulation, some made with asbestos, and some made
with other materials).
Given this, Plaintiff has not established that Pace was
exposed to Crane Co. products containing asbestos. Plaintiff
has thus failed to provide evidence supporting a reasonable
inference that Crane Co.’s products were a substantial cause of
Pace’s mesothelioma. Therefore, we affirm the district court’s
order granting Defendant Crane Co.’s motion for summary
judgment.
B.
With respect to Westinghouse, a turbine manufacturer, the
district court found that there was evidence that Pace had
worked with and around Westinghouse turbines in machine shops,
but that this work had not resulted in exposure to asbestos with
sufficient frequency, regularity, and proximity to render
Westinghouse liable. Relying primarily on the testimony of
Raymond Lee and Robert Lee Tant, Plaintiff on appeal attempts to
show that Pace’s exposure to Westinghouse’s asbestos-containing
13
turbines in Shop 38 was a substantial cause of his mesothelioma.
Ultimately, however, we conclude that Plaintiff has failed to
show that Pace’s work in Shop 38 specifically was conducted in
such a manner as to expose him to asbestos with the requisite
frequency, regularity, and proximity.
Plaintiff has provided evidence demonstrating that
Westinghouse turbines were present at the shipyard, and that
Pace worked on them. When asked if he remembered any brands of
the equipment he worked on at the shipyard, Pace responded that
“[i]t was a lot of General Electric and Westinghouse.”
J.A. 111. Additionally, when his coworker Raymond Lee discussed
his work on turbines aboard ships, Lee testified that he worked
on Westinghouse turbines with Pace “[m]aybe once or twice.”
J.A. 743.
Plaintiff also relies upon the testimony of Robert Lee Tant
and Raymond Lee in her attempt to demonstrate that Pace was
exposed to asbestos through his work on Westinghouse turbines.
Unfortunately for Pace, however, much of this testimony concerns
work upon Westinghouse turbines aboard ships, not on land in
Shop 38. See, e.g., Appellant’s Br. at 38. Additionally, some
of the cited testimony describes Pace’s work on turbines
generally, without specifying whether that task occurred on land
or aboard ships. The instant appeal, however, only involves
potential asbestos exposure related to Westinghouse turbines in
14
Shop 38. As discussed below, Plaintiff has not provided
sufficient evidence about the type of work on Westinghouse
turbines that occurred on land in Shop 38 to support a
reasonable inference under Lohrmann that this exposure
substantially caused Pace’s mesothelioma.
The evidence shows that certain repair and maintenance
tasks took place while the turbines were still on ships and that
other tasks were completed in machine shops. When turbines were
worked on aboard ships, machinists and others would remove
insulation. Some turbine components were then sent to Shop 38
for cleaning or repair, including turbine casings. There,
machinists like Pace would clean turbine casings, removing any
residual insulation.
Plaintiff cites the testimony of David Fanchette, Pace’s
coworker, in arguing that “[l]ogically, if the removal of
asbestos insulation from Westinghouse turbines on vessels
created a fog of asbestos dust, the reasonable inference is that
Mr. Pace’s removal of insulation from Westinghouse turbines in
Shop 38 with a wire brush and mechanical grinder likewise
created a fog of asbestos dust.” Reply Br. at 8. However, as
the record reflects, insulation was primarily removed aboard
ships, leaving only residual insulation behind on turbine
casings. Further, Fanchette did not testify that Pace would
clean turbines with a wire brush and mechanical grinder in
15
Shop 38; he actually stated that valves were cleaned this way.
J.A. 864. Fanchette makes no mention of how turbine casings
would be cleaned or if this activity would result in asbestos
dust. As the Supreme Court of South Carolina held in Henderson,
“presence in the vicinity of static asbestos is not exposure to
asbestos.” 644 S.E.2d at 727 (citation omitted). Plaintiff
must show that Pace worked on Westinghouse turbines in such a
way that actually exposed Pace to asbestos, which she has failed
to do.
Construing the facts in the light most favorable to
Plaintiff, a reasonable jury could conclude that Westinghouse
turbines, which Pace sometimes worked on, contained asbestos-
containing parts. However, there is nothing in the record to
establish that Pace’s work on land in Shop 38 was conducted in
such a manner as to expose him to asbestos with such frequency,
regularity, or proximity to give rise to an inference that
asbestos exposure from Westinghouse turbines substantially
caused his mesothelioma. Given the lack of evidence about
Pace’s exposure in Shop 38, rather than aboard ships, we agree
with the district court that Westinghouse is entitled to summary
judgment.
C.
With respect to Goulds, a manufacturer of pumps present in
the shipyard, the district court found that “there is no
16
evidence that [Pace] worked with or around Goulds pumps in any
machine shop--much less that he was exposed to asbestos in
connection with any Goulds pump in a machine shop.” J.A. 1990.
Because Plaintiff has not shown that any Goulds products that
Pace may have worked on or around in either Shop 31 or 38
contained asbestos, we must also conclude that the district
court correctly granted summary judgment to Goulds.
In attempting to establish that Pace worked in proximity to
Goulds pumps in Shops 31 and 38 with sufficient regularity and
frequency, Plaintiff offers an array of circumstantial evidence
trying to connect Pace’s typical on-land work to Goulds pumps.
For example, Plaintiff relies upon the testimony of Gerald M.
Karst and Guy Lookabill, as well as other evidence in the
record, to show that Pace was exposed to asbestos-containing
Goulds products in both Shop 31 and Shop 38. Even if we assume
that Pace worked in proximity to Goulds pumps with regularity
and frequency in either or both shops, however, Plaintiff’s
claim still fails, because she does not establish that any
Goulds pumps present in the shipyard contained asbestos.
In arguing that these pumps contained asbestos, Plaintiff
notes that “prior to 1985, Goulds sold centrifugal pumps with
asbestos-containing gaskets and stuffing box packing.”
Appellant’s Br. at 5. She also states that Goulds “specified
the use of asbestos-containing packing and gaskets in its pumps
17
from the 1940s to the mid-1980s” and that the company “did not
cease selling any products which incorporated asbestos-
containing gaskets and asbestos-containing packing until
approximately 1985.” Id.
However, the record does not establish that any Goulds
pumps that Pace may have come into contact with contained
asbestos, and Plaintiff presents information from the record out
of context in her attempt to show the contrary. First, the
record establishes that “[p]rior to approximately 1985, Goulds
sold some centrifugal pumps with asbestos-containing casing
gaskets and stuffing box packing”--not that all of Goulds’ pumps
contained asbestos. J.A. 1474 (emphasis added). Second, while
the record does indeed show that Goulds recommended the use of
asbestos-containing products like gaskets and sheet packing, the
documents provided do not establish that only asbestos-
containing products were recommended, to the exclusion of non-
asbestos containing products. Finally, contrary to Pace’s
suggestion, the record only establishes that Goulds ceased
selling asbestos-containing products in 1985, not that it only
sold products containing asbestos before that date.
Given the above, Plaintiff has not established that any
Goulds products that Pace may have worked with contained
asbestos. To find otherwise would require significant
speculation, and “[m]ere unsupported speculation, such as this,
18
is not enough to defeat a summary judgment motion.” Ennis v.
Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 62 (4th
Cir. 1995). Accordingly, we affirm the order of the district
court granting summary judgment to Goulds.
D.
Finally, Plaintiff challenges the district court’s grant of
summary judgment to Buffalo, a manufacturer of pumps used in the
shipyard. The district court found that there was “no evidence
that [Pace] worked with or around Buffalo pumps in any machine
shop--much less that he was exposed to asbestos in connection
with any Buffalo pump in a machine shop.” J.A. 2002-03. On
appeal, Plaintiff focuses on the affidavit of Martin K. Kraft,
Pace’s work on the USS Proteus AS 19, and the testimony of Guy
Lookabill in arguing that exposure to asbestos-containing
Buffalo pumps in Shop 38 substantially caused Pace’s
mesothelioma. Although Plaintiff demonstrates that asbestos-
containing Buffalo pumps were indeed present at the shipyard,
she fails to provide evidence to show that Pace worked on or
near them with frequency or regularity.
To establish that Buffalo pumps contained asbestos,
Plaintiff points to the affidavit of Martin K. Kraft, the
Production Manager of Buffalo. Kraft testified that Buffalo
adhered to numerous military specifications during the time
19
period in question, including the requirement that “[p]ump
casing joints shall be made up using compressed asbestos sheet
gaskets.” J.A. 1236 (alterations in original). Assuming
without deciding that this establishes that all Buffalo pumps in
the shipyard contained asbestos, we next consider whether
Plaintiff has provided sufficient evidence to support a
reasonable inference that Pace worked on or around these
products with sufficient frequency, regularity, and proximity,
and find that she has failed to do so.
To establish that Pace worked in proximity to Buffalo
pumps, Plaintiff relies in part on Pace’s work in connection
with the USS Proteus AS 19. Pace worked aboard this ship, which
contained several pumps manufactured by Buffalo. Because pumps
from ships were overhauled in Shop 38, Plaintiff argues that it
is reasonable to infer that when asbestos-containing Buffalo
pumps were taken from the USS Proteus AS 19 to Shop 38 for
repair, Pace worked on or near them and was therefore exposed to
asbestos. See Reply Br. at 14.
In addition to this evidence, Plaintiff also cites Guy
Lookabill’s testimony to establish that Pace worked on or around
Buffalo pumps. Plaintiff emphasizes two portions of Lookabill’s
deposition testimony in particular. First, when Lookabill was
asked the names of the “main” products that he recalled seeing
during his time at the shipyard generally, Lookabill mentioned
20
six company names, including Buffalo. J.A. 466-67. Second,
according to Plaintiff, Lookabill testified that Pace installed
Buffalo pumps. Appellant’s Br. at 28. Although Lookabill did
indeed say that he believed that Pace installed Buffalo pumps,
he also made clear that he was speculating, stating: “I’m sure
there was Buffalo pumps and Goulds in the space. Now, whether
or not he worked on that particular pump, I don’t know.”
J.A. 495 (emphasis added).
Plaintiff argues that Lookabill’s testimony is significant
because Lookabill and Pace worked closely at the shipyard from
1972 to 1974. She therefore argues that since Buffalo was one
of the “main” manufacturers that Lookabill remembers, and since
Buffalo pumps were present in the same “space” as Pace, a jury
could reasonably infer that Pace was exposed to asbestos from
Buffalo pumps with frequency, regularity, and proximity.
We disagree that a jury could draw this conclusion from the
scant evidence that Pace has offered. In evaluating this
evidence, we first note that Lookabill only worked with Pace on
the same ship or in the same machine shop “[m]aybe a couple
times a week”--or about 30% of the time--from 1972 to 1974.
J.A. 477-78; 554-55. During the days they spent working
together, they would spend about six hours out of an eight hour
shift aboard a ship and two hours on land. J.A. 478. Given
that about three-fourths of the time the two men worked together
21
was spent aboard ships, and bearing in mind that Lookabill’s
testimony does not specify which “space” the Buffalo pumps were
actually in, the evidence that Pace worked in proximity to
Buffalo pumps in the area at issue in this appeal is tenuous.
Even if we construe Lookabill’s testimony to mean that
Buffalo pumps were present in Pace’s immediate workspace in
Shop 38, Plaintiff’s claim against Buffalo still fails because
Plaintiff does not provide any evidence showing that Pace worked
on or around Buffalo pumps in Shop 38 with any sort of
regularity or frequency. Plaintiff makes too much of
Lookabill’s testimony regarding the “main” products that he
identified, especially considering that Lookabill specifically
stated that he could not remember all of the different kinds of
pumps that were aboard the ships that he and Pace worked on.
J.A. 494.
Showing only that Pace and Buffalo pumps were at some point
in the same machine shop is insufficient to support an inference
of substantial causation. In Lohrmann, this court declined to
adopt the proposed rule that “if the plaintiff can present any
evidence that a company’s asbestos-containing product was at the
workplace while the plaintiff was at the workplace, a jury
question has been established as to whether that product
contributed as a proximate cause to the plaintiff’s disease.”
782 F.2d at 1162. Instead, more was required, specifically:
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“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. Plaintiff has not
provided such evidence here.
Plaintiff argues that the circumstantial evidence described
above is sufficient to support a reasonable inference of
substantial causation and that the district court erroneously
required direct testimony of Pace’s asbestos exposure.
Plaintiff invokes this court’s opinion in Roehling v. National
Gypsum Co. Gold Bond Building Products, 786 F.2d 1225 (4th Cir.
1986), to argue that “witnesses need not provide direct
testimonial evidence via a specific recollection that a
plaintiff was exposed to a specific asbestos-containing product
on a specific number of occasions to survive summary judgment on
the issue of substantial causation.” Appellant’s Br. at 28.
We agree with Plaintiff that under Roehling--as well as
under Lohrmann--circumstantial evidence may be sufficient to
show causation. However, we do not agree that the district
court erroneously required direct evidence. The district court
found, as we do here, that the circumstantial evidence described
above is insufficient to show that Pace was exposed to asbestos-
containing Buffalo pumps with sufficient frequency, regularity,
and proximity to support a reasonable inference of substantial
23
causation. Therefore, we affirm the district court’s order
granting Buffalo’s motion for summary judgment.
IV.
Given the above, the district court’s orders granting
summary judgment to Crane Co., Westinghouse, Goulds, and Buffalo
are
AFFIRMED.
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