Smith v. Schlage Lock Co.

• Decision Date: 27 January 2021
• Docket Number: No. 19-1391,19-1391
• Citation: 986 F.3d 482
• Parties: Dorothy E. SMITH, Individually and as Executrix of the Estate of Julian Jackson Smith, Plaintiff - Appellant, v. SCHLAGE LOCK COMPANY, LLC, Defendant - Appellee, and AMTETEK, Inc., sued individually and as successor-in-interest to Haveg Industries, Inc. ; successor-in-interest to Hercules, Inc.; AstenJohnson, Inc., f/k/a The Asten Group; Bechtel Corporation; Caterpillar, INC.; CBS Corporation, f/k/a Viacom, Inc., sued as successor-by-merger to CBS Corporation f/k/a Westinghouse Electric Corporation and as successor-in-interest to Haveg Industries, Inc. ; Champion International Corporation; Champlain Cable Corporation, f/k/a Hercules, Inc., and as successor-in-interest to Haveg Industries, Inc. ; Colgate-Palmolive Company; Cummins Power Generation, Inc., d/b/a Cummins Onan; Fisher Controls International, LLC; Flowserve Corporation, f/k/a The Duron Company, Inc., sued as successor-by-merger to Durco International and also sued as successor-in-interest to Anchor Darling Valves f/k/a Darling Manufacturing; Foster Wheeler Energy Corporation; General Electric Company; The Gorman-Rupp Company; Goulds Pumps, Inc.; Grinnell, LLC, d/b/a Grinnell Corp.; Hercules, Inc.; Honeywell International, Inc., f/k/a Allied-Signal, Inc., sued as successor-in-interest to Bendix Corporation; International Paper Company; The Nash Engineering Company; Riley Power, Inc., f/k/a Riley Stoker Corporation, f/k/a D.B. Riley, Inc.; Sequoia Ventures, Inc., f/k/a Bechtel Corporation; Warren Pumps, LLC; Western Auto Supply, d/b/a Advance Auto Parts; Weyerhaeuser Company; The William Powell Company ; Scott Co. of California; Tompkins-Beckwith, Inc. ; International Business Machines Corporation, d/b/a IBM; Weatherly, Inc., sued as successor-in-interest to D.M. Weatherly; Farmers Chemical Association, Inc. ; The Rust Engineering Company; Briggs & Stratton Corporation; Textron, Inc., d/b/a Lycoming Engines ; Davis-Standard Corporation; Andritz, Inc., f/k/a Ahlstrom Machinery, Inc., f/k/a Kamyr, Inc. ; DeZURIK, Inc., d/b/a Dezurik-Apco Williametter Eagle, Inc.; Certainteed Corporation, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

986 F.3d 482

Dorothy E. SMITH, Individually and as Executrix of the Estate of Julian Jackson Smith, Plaintiff - Appellant,

v. SCHLAGE LOCK COMPANY, LLC, Defendant - Appellee,andAMTETEK, Inc., sued individually and as successor-in-interest to Haveg Industries, Inc. ; successor-in-interest to Hercules, Inc.; AstenJohnson, Inc., f/k/a The Asten Group; Bechtel Corporation; Caterpillar, INC.; CBS Corporation, f/k/a Viacom, Inc., sued as successor-by-merger to CBS Corporation f/k/a Westinghouse Electric Corporation and as successor-in-interest to Haveg Industries, Inc. ; Champion International Corporation; Champlain Cable Corporation, f/k/a Hercules, Inc., and as successor-in-interest to Haveg Industries, Inc. ; Colgate-Palmolive Company; Cummins Power Generation, Inc., d/b/a Cummins Onan; Fisher Controls International, LLC; Flowserve Corporation, f/k/a The Duron Company, Inc., sued as successor-by-merger to Durco International and also sued as successor-in-interest to Anchor Darling Valves f/k/a Darling Manufacturing; Foster Wheeler Energy Corporation; General Electric Company; The Gorman-Rupp Company; Goulds Pumps, Inc.; Grinnell, LLC, d/b/a Grinnell Corp.; Hercules, Inc.; Honeywell International, Inc., f/k/a Allied-Signal, Inc., sued as successor-in-interest to Bendix Corporation; International Paper Company; The Nash Engineering Company; Riley Power, Inc., f/k/a Riley Stoker Corporation, f/k/a D.B. Riley, Inc.; Sequoia Ventures, Inc., f/k/a Bechtel Corporation; Warren Pumps, LLC; Western Auto Supply, d/b/a Advance Auto Parts; Weyerhaeuser Company; The William Powell Company ; Scott Co. of California; Tompkins-Beckwith, Inc. ; International Business Machines Corporation, d/b/a IBM; Weatherly, Inc., sued as successor-in-interest to D.M. Weatherly; Farmers Chemical Association, Inc. ; The Rust Engineering Company; Briggs & Stratton Corporation; Textron, Inc., d/b/a Lycoming Engines ; Davis-Standard Corporation; Andritz, Inc., f/k/a Ahlstrom Machinery, Inc., f/k/a Kamyr, Inc. ; DeZURIK, Inc., d/b/a Dezurik-Apco Williametter Eagle, Inc.; Certainteed Corporation, Defendants.

No. 19-1391

United States Court of Appeals, Fourth Circuit.

Submitted: December 11, 2020

Decided: January 27, 2021

Lisa White Shirley, DEAN OMAR BRANHAM SHIRLEY LLP, Dallas, Texas; Janet Ward Black, WARD BLACK LAW, Greensboro, North Carolina, for Appellant. Michael W. Drumke, Catherine Basque Weiler, SWANSON, MARTIN & BELL, LLP, Chicago, Illinois, for Appellee.

Before AGEE, WYNN, and QUATTLEBAUM, Circuit Judges.

Affirmed by published per curiam opinion.

PER CURIAM:

In 2016, Julian Jackson Smith was diagnosed with mesothelioma, a form of cancer usually caused by asbestos exposure. He died from the illness the following year.

Before his death, Mr. Smith and his wife, Dorothy Smith, brought this action alleging that Schlage Lock Co. and dozens of other defendants may have exposed Mr. Smith to asbestos at some point in the past. Relevant to this appeal, the Smiths sued Schlage Lock on the theory that Mr. Smith inhaled asbestos fibers while working as a pipefitter during the construction of a Schlage Lock plant in Rocky Mount, North Carolina in 1972.

The district court granted summary judgment to Schlage Lock. We affirm.

I.

Mesothelioma is an aggressive, painful form of cancer that is usually untreatable. The Smiths’ expert, Dr. Edwin Holstein, explained that mesothelioma in the United States is almost always caused by the patient's cumulative exposure to asbestos, though the latency period is lengthy—thirty to forty years, on average. According to Dr. Holstein, "there is no known level of asbestos exposure above ambient air levels which has not been shown to contribute to the development of mesothelioma in a sufficiently large exposed population." J.A. 1077.¹ In other words, virtually any asbestos exposure above ambient air levels can contribute to mesothelioma years down the road.² These factors make it difficult to determine the precise source or sources of the patient's cancer-causing asbestos exposure.

Mr. Smith testified to having been exposed or likely exposed to asbestos multiple times over the course of his varied career, including experiencing exposure to insulation that was "more than likely asbestos" during a construction job in 1952; cutting asbestos siding while building an automotive service station in 1957; and cutting asbestos blocks to make a gasket during the construction of an Allied Chemical plant in the late 1960s or early 1970s. J.A. 133; see J.A. 160–61, 163, 245, 247–50.

One of Mr. Smith's jobs during this period was a six-to-nine-month stint assisting with the construction of the Schlage Lock plant in Rocky Mount. He worked as a pipefitter, installing steam and cooling-water lines under the direction of Embree Reed, Inc., the plumbing subcontractor who performed the pipe work at the site. Mr. Smith testified that every day during several months of that job, insulators cut and applied insulation to the lines, which created dust that he inhaled. However, he did not know whether that insulation contained asbestos.³

After Mr. Smith received his mesothelioma diagnosis in February 2016, the Smiths brought claims under eight causes of action against numerous defendants in federal district court.⁴ The defendants included the alleged manufacturers of asbestos-containing products as well as the alleged owners of the premises on which Mr. Smith claimed to have been exposed to asbestos. At issue in this appeal is only one claim against one defendant: The Smiths’ premises-liability claim against Schlage Lock arising from Mr. Smith's alleged exposure to asbestos while working at the Rocky Mount facility in the early 1970s.⁵

The district court granted summary judgment to Schlage Lock on two independent bases. Smith v. 3M Co. , No. 1:16CV379, 2019 WL 1116718, at *4–5 (M.D.N.C. Mar. 11, 2019). First, the court concluded that there was no evidence in the record to support a finding that Mr. Smith was exposed to asbestos during his work at the Schlage Lock plant. Id. Second, the court found that the record did not support a conclusion "that Schlage [Lock] exercised control over the jobsite or the work conducted by Mr. Smith during the facility's construction." Id. at *5. Mrs. Smith timely appealed both conclusions.

II.

We review the district court's grant of summary judgment de novo, "drawing all reasonable inferences in favor of the non-moving party." Emmons v. City of Chesapeake , 982 F.3d 245, 250 (4th Cir. 2020) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248–50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). "Summary judgment is appropriate where there is no dispute of material fact and judgment is proper as a matter of law." Id.

Of course, "[u]nsupported speculation is not sufficient to defeat a summary judgment motion." CTB, Inc. v. Hog Slat, Inc. , 954 F.3d 647, 659 (4th Cir. 2020) (quoting Felty v. Graves-Humphreys Co. , 818 F.2d 1126, 1128 (4th Cir. 1987) ). And the moving party need not necessarily "produce evidence showing the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Rather, "the burden on the moving party may be discharged by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Id. ; see also Cray Commc'ns, Inc. v. Novatel Comput. Sys., Inc. , 33 F.3d 390, 393 (4th Cir. 1994) ("[U]nder Celotex , the moving party on a summary judgment motion need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case." (internal quotation marks omitted)).

"Because this case invokes our diversity jurisdiction, we apply controlling state law on settled issues and predict how the state's highest court would rule on unsettled issues." Young v. Equinor USA Onshore Props., Inc. , 982 F.3d 201, 206 (4th Cir. 2020). If the state's highest court "has spoken neither directly nor indirectly on the particular issue before us," decisions from the state's intermediate appellate courts "constitute the next best indicia of what state law is, although such decisions may be disregarded if the federal court is convinced by other persuasive data that the highest court of the state would decide otherwise." McKiver v. Murphy-Brown, LLC , 980 F.3d 937, 964 (4th Cir. 2020) (internal quotation marks omitted) (quoting Priv. Mortg. Inv. Servs., Inc. v. Hotel & Club Assocs., Inc. , 296 F.3d 308, 312 (4th Cir. 2002) ).

III.

The district court granted summary judgment for Schlage Lock first and foremost based on the lack of evidence that Mr. Smith was exposed to asbestos at the Schlage Lock site which later caused his mesothelioma. We agree.

North Carolina has not articulated a clear framework for analyzing asbestos premises liability claims. But it appears undisputed that, in order to establish causation, North Carolina law requires actual exposure to asbestos. See Wilder v. Amatex Corp. , 314 N.C. 550, 336 S.E.2d 66, 68 (1985) ("We agree ... that at trial plaintiff's evidence must demonstrate that he was actually exposed to the alleged offending products."); see also Jones v. Owens-Corning Fiberglas Corp. & Amchem Prods., Inc. , 69 F.3d 712, 716 (4th Cir. 1995) (finding that under North Carolina law, a "plaintiff in a personal injury asbestos case must prove more than a casual or minimum contact with the product containing asbestos" (internal quotation marks omitted)); Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156, 1162–63 (4th Cir. 1986) ("To 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."); Whitehead v. Air & Liquid Sys. Corp. , No. 1:18CV91, 2020 WL 2523169, at *2 (M.D.N.C. May 18, 2020) ("To prevail in an asbestos-related product-liability...