Heather Isringhausen Gvillo Nov. 21, 2014, 10:30am

GREENSBORO, N.C. (Legal Newsline) – A North Carolina has federal judge has granted summary judgment to two defendants in an asbestos case, concluding that the plaintiffs misconstrued the testimony of their sole witness.

Judge Catherine C. Eagles granted summary judgment on Nov. 7 in the U.S. District Court for the Middle District of North Carolina for defendants Foster Wheeler and William Powell Company.

William Powell manufactured and sold valves, some of which contained asbestos, as well as gaskets and packing as replacement parts for its valves.

Foster Wheeler manufactured boilers that sometimes used asbestos-containing component parts.

Eagles held that because the plaintiffs failed to provide sufficient evidence proving the decedent was actually exposed to asbestos from the defendants’ products, summary judgment is proper.

Plaintiffs Joseph Logan, personal representative of the estate of deceased Ralph Logan, and Lois Logan claim the decedent developed mesothelioma from occupational asbestos exposure “on a regular basis,” resulting in his death.

Logan allegedly worked as a maintenance supervisor at a Getty Oil refinery in Delaware from 1956 to 1986.

As part of his responsibilities, the decedent was required to be present when workers serviced equipment, which occurred on a daily basis. The plaintiffs allege that several types of equipment used at the refinery contained asbestos in some way.

Logan also allegedly performed some hands-on work, such as handling small parts like gaskets and valves and boiler work, which likely contained asbestos.

Eagles notes that nearly all relevant evidence comes from the testimony of Louis Pederson, Logan’s former co-worker.

Pederson estimated that Logan worked on approximately 20 to 30 turnarounds of the Foster Wheeler boilers.

However, the plaintiffs did not present evidence on the specific model of any boiler Logan may have worked on or whether the Foster wheeler boilers contained asbestos-containing components when originally installed in the refinery.

“Absent additional evidence, this is insufficient to allow a fact-finder to infer that Mr. Logan was exposed to asbestos from a Foster Wheeler product,” Eagles stated.

According to the material relied upon by the plaintiffs, the court concluded there is evidence that Foster Wheeler sold some products that contained asbestos but the defendant would use asbestos-containing component parts in its equipment when specified by the buyer.

As a result, the court held that even if it were to assume the original boilers contained asbestos, Pederson was not actually present when Logan allegedly performed work on the boilers and cannot testify that Logan was exposed to asbestos from Foster Wheeler’s products.  

Additionally, Pederson testified that workers would have removed replacement gasket material made by an unknown manufacturer, meaning it could not be linked to Foster Wheeler.

“Thus, the plaintiffs have presented no evidence from which a fact-finder would infer that the two Foster Wheeler boilers in the cat cracker unit contained asbestos gaskets when sold by Foster Wheeler and no evidence that Mr. Logan was exposed to asbestos from these boilers,” Eagles stated. “Absent such evidence, Foster Wheeler is entitled to summary judgment.”

As for William Powell, Eagles concluded that the plaintiffs did not provide testimony or evidence from anyone who personally witnessed Logan working on or near any Powell valves.

The plaintiffs relied on Pederson’s testimony that Powell valves were located throughout the refinery, the defendant’s valves made up roughly 10 percent of the valves used at Logan’s workplace and that Logan’s responsibilities typically required him to be present when workers serviced the valves.

Therefore, the evidence is insufficient to prove actual exposure, Eagles ruled.

“[T]he fact finder could do no more than speculate that Logan was exposed to asbestos from Powell valves,” Eagles stated.

The court also determined that the plaintiffs overstated Pederson’s testimony. The plaintiffs claim he testified that he personally observed Logan near the dusty repair work.

However, Pederson specifically stated that he “could have” observed Logan around the repair work, which cannot be misconstrued as Pederson personally observing the alleged exposure.

“Here, the evidence is circumstantial, indirect, and weak: Mr. Pederson did not usually work directly with Mr. Logan, Mr. Logan ‘would’ have been around asbestos dust ‘if’ he was present, and Mr. Logan’s work around Powell valves was ‘infrequent,’” Eagles wrote.

“Even when taken together with the plaintiffs’ evidence of Logan’s general job duties and the large number of Powell valves on site, this is insufficient to draw an inference of exposure from Powell valves,” she continued.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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