United States District Court, District of South Carolina
TERENCE J. SPARKMAN AND LEONARD SPARKMAN, personal representatives of the estate of ELIJAH SPARKMAN, JR., deceased, Plaintiffs,
A.W. CHESTERTON COMPANY; FOSTER WHEELER ENERGY CORP.; GOULDS PUMPS, INC.; METROPOLITAN INSURANCE COMPANY; RESEARCH-COTTRELL, INC. n/k/a AWT AIR COMPANY, INC; RILEY POWER, INC.; UNIROYAL, INC., Defendants.
DAVID C. NORTON, UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant Research-Cottrell, Inc.’s (“Research-Cottrell”) motion for summary judgment. For the reasons set forth below, the court denies Research-Cottrell’s motion for summary judgment.
From 1954 to 2000, decedent Elijah J. Sparkman (“Sparkman”) was employed in various capacities at Westvaco Pulp and Paper Mill (“Westvaco”) in North Charleston, South Carolina, including as a laborer, boiler operator, evaporator operator and precipitator operator. Pls.’ Resp. to Research-Cottrell’s Mot. 1-2. Sparkman was diagnosed with mesothelioma and died of this disease on October 20, 2012. Id. at 2. Plaintiffs Terence J. Sparkman and Leonard Sparkman (“plaintiffs”) allege Sparkman’s mesothelioma resulted from a prolonged exposure to asbestos while employed at Westvaco. Id. Relevant to this motion, plaintiffs allege that Sparkman was exposed to asbestos from Research-Cottrell’s asbestos-containing precipitators while employed at Westvaco. Id. at 1-2. Their expert in this matter, Dr. Richard Kradin, has opined to a reasonable degree of medical certainty that Sparkman’s malignant mesothelioma was caused by cumulative exposure to asbestos from his work at Westvaco, including his work with and around asbestos-containing precipitators. Id.
Although Sparkman passed away before he could be deposed in this matter, four of his coworkers have provided testimony as to how his work with and around precipitators at Westvaco exposed him to asbestos. Id. Taken in the light most favorable to the non-moving party, as required on a motion for summary judgment, their testimony presents the following evidence.
Westvaco personnel records indicate that Sparkman worked as a “precipitator man” from June 1974 through May 1975. Research-Cottrell’s Mot. Ex. D. A precipitator is a building size structure used in the paper making process to filter dust and dirt from the combustion gases emitted by boilers at the facility. Research-Cottrell’s Mot. 2. Richard Mizzell (“Mizzell”), Sparkman’s coworker at Westvaco, testified that Sparkman was a “precipitator man” around 1970 or 1971. Mizzell Dep. 26:3-5. However, Westvaco’s personnel records reveal that Sparkman was a pool man from May 1968 to September 1970. Research-Cottrell’s Mot. Ex. D. He then became a utility man and was employed in this capacity until June 1974. Id. All of these positions took place in the recovery department. Id.
According to Mizzell, there were six or seven precipitators located in the recovery department of Westvaco, including precipitator “9A, ” and Sparkman worked on all of them. Mizzell Dep. 30:19-25. Fred Kessler (“Fred”) worked with Sparkman “at times” from October 1971 to March 1979. Fred Dep. 22:2-22, 24:23-25. Fred testified that all of the precipitators in the recovery department, including precipitator number 9, “may” have been manufactured by Research-Cottrell. Id. at 63:14-25, 67:1-3. He recalled that Sparkman worked on all of the precipitators in the recovery department as a “precipitator operator.” Id. at 65:12-18.
Mizzell testified that he helped Sparkman perform his work on precipitators from 1969 to 1972. Mizzell Dep. 28:16-23; 31:1-6. He recalled that they would use a five to eight pound hammer to beat the “salt cakes” from the precipitator plates. Id. at 29:10-18. According to Mizzell, in order to perform this task, they were required to physically remove the door and go inside of the precipitator. Id. at 29:19-30:2. Mizzell specifically recalled Sparkman working on a Research-Cottrell precipitator on 15 to 20 occasions. Id. at 69:18-22. He testified that Sparkman was exposed to the asbestos insulation used on the precipitators at Westvaco. Id. at 84:5-10.
James Barnes (“Barnes”) testified that when he was a laborer at Westvaco from 1970 to 1975, he worked with and around Sparkman, and helped to assist Sparkman with his work on precipitator numbers 6 and 7. Barnes Dep. 30:11-25, 31:22-32:8, 66:21-23. Barnes recalled cleaning out these precipitators with Sparkman “a few times” and testified that this process could take anywhere from four to five hours to three or four days. Id. at 67:14-68:5. Barnes also observed Sparkman clean precipitator number 1, but could not testify how often Sparkman worked on this precipitator. Id. at 68:19-24, 69:7-10.
Sparkman worked near precipitators after his time as a precipitator man ended. Pls.’ Resp. 3. Lonnie Kessler (“Lonnie”), Fred’s brother, worked as an insulator at Westvaco from 1976 to 1988, where he was responsible for insulating the pipes throughout the facility, including the pipes attached to precipitators. Lonnie Dep. 30:12-19, 35:17-36:23. During this time, Lonnie and Sparkman worked around each other on a weekly basis. Id. at 67:2-5. Lonnie testified that his insulation work would create dust that Sparkman would have inhaled when working near him. Id. at 67:16-24. He recalled doing “patch jobs” on all of the precipitators, which included precipitator number 9, when Sparkman was around. 99:5-11, 100:23-101:4, 102:3-5. This process involved replacing the insulation on certain parts of the precipitators with “Kaylo pipe covering” insulation or non-asbestos containing mineral wool insulation. Id. at 99:5-11, 100:23-101:4, 102:12-17.
On September 14, 2012, Sparkman filed a personal injury action in the Court of Common Pleas in Charleston County, alleging claims of breach of implied warranty, breach of post-sale duty to warn, false representation, negligence, recklessness, and strict liability in tort. Defendants then removed the action to this court on October 12, 2012, alleging jurisdiction based on diversity of citizenship. On April 23, 2013, following Sparkman’s death, the plaintiffs filed an amended complaint as the legal beneficiaries of Sparkman’s estate and added a claim for wrongful death. On September 8, 2014, Research-Cottrell filed a motion for summary judgment, to which plaintiffs responded on September 24, 2014. On September 29, 2014, Research-Cottrell filed a reply. The motion has been fully briefed and is now ripe for the court’s review.
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.
This case is predicated on diversity jurisdiction and was removed to federal court, so it is governed by state substantive law and federal procedural law. Shady Grove Orthopedic Ass’ns., P.A. v. Allstate Ins. Co., 599 U.S. 393, 417 (2010) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). Because the development of the disease was the last event necessary to give rise to a cause of action, and because the evidence indicates that this occurred in South Carolina, South Carolina substantive law applies. See Moosally v. W.W. Norton & Co., 594 S.E.2d 878, 888 (S.C. Ct. ...