McDaniel v. John Crane, Inc.

DEBORAH J. MCDANIEL and KENNETH R. MCDANIEL, Plaintiffs, v. JOHN CRANE, INC., et al., Defendants.

1:19CV359

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

March 23, 2021

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Presently before this court is a Motion for Summary Judgment filed by Defendant Covil Corporation ("Defendant" or "Covil"), (Doc. 125), to which Plaintiffs have responded, (Doc. 146), and Defendant has replied, (Doc. 157).

Defendant has also filed a Motion in Limine to Exclude Expert Opinion Testimony of Charles Ay, (Doc. 135), to which Plaintiffs have responded, (Doc. 150), and Defendant has replied, (Doc. 158).

These motions are ripe for adjudication. For the reasons stated herein, this court will grant Defendant's motion for summary judgment and the motion in limine to exclude the testimony of Charles Ay. Because summary judgment is granted as to the claims against Covil Corporation, this court will deny as moot the motions in limine filed by Plaintiffs, (Docs. 187, 188, and 203), and the remaining motions in limine filed by Defendant Covil, (Docs. 137, 192, 195, 199, and 201).

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Parties

Plaintiff Kenneth McDaniel ("Mr. McDaniel") was employed by Duke Power as an operator at its Belews Creek power plant in North Carolina from 1974 until 2005. (Doc. 146-1 ¶ 5.) Plaintiff Deborah McDaniel ("Mrs. McDaniel") is married to Mr. McDaniel. (Doc. 127-20 at 3.)¹ In July 2017, Mrs. McDaniel was diagnosed with lung cancer, which Plaintiffs argue was the result of exposure to asbestos through her husband's contaminated work clothing. (Pls.' Resp. in Opp'n to Mot. for Summ. J. ("Pls.' Resp.") (Doc. 146) at 1.)

Defendant is a South Carolina corporation whose principal place of business is in South Carolina. (Complaint ("Compl") (Doc. 1) ¶ 24; Doc. 48 ¶ 11.)

B. Procedural History

Plaintiffs filed the present action in this court on April 1, 2019 against Defendant and several other parties. (Compl. (Doc. 1).) On May 10, 2019, Defendant answered Plaintiffs' Complaint. (Doc. 48.)

On May 8, 2020, Defendant filed the instant Motion for Summary Judgment, (Doc. 125), and accompanying brief, (Doc. 126). On May 11, 2020, Defendant filed a corrected brief. (Def.'s Br. in Supp. of Mot. for Summ. J. ("Def.'s Br.") (Doc. 127).) Plaintiffs responded on June 8, 2020, (Pls.' Resp. (Doc. 146)), and Defendant replied on June 22, 2020, (Def.'s Reply Br. in Supp. of Mot. for Summ. J. ("Def.'s Reply Br.") (Doc. 157)).

On May 22, 2020, Defendant filed a Motion in Limine to Exclude Expert Opinion Testimony of Charles Ay, (Doc. 135), and accompanying brief, (Def.'s Br. in Supp. of Mot. in Lim. to Exclude Expert Opinion Testimony of Charles Ay ("Def.'s Mot. in Lim. Br.") (Doc. 136)). Plaintiffs responded on June 12, 2020, (Pls.' Consolidated Resp. to Defs.' Mots. in Lim. to Exclude Expert Testimony of Charles Ay ("Pls.' Resp. to Mot. in Lim.") (Doc. 150), and Defendant replied on June 26, 2020, (Doc. 158).

C. Factual Background

A majority of the facts are described here, but additional relevant facts will be addressed as necessary throughout theopinion. The majority of facts are not disputed, and any material factual disputes will be specifically addressed in the relevant analysis. The facts described in this summary are taken in a light most favorable to Plaintiffs. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Mr. McDaniel worked at Duke Power's Belews Creek plant from June 1974 until November 2005 as a Utility Operator, Control Operator, and Boiler and Powerhouse Operator, (Doc. 146-1 ¶ 5), performing assorted labor tasks throughout the plant, (id.) As a utility operator, Mr. McDaniel was responsible for opening and closing valves, changing oil in pieces of equipment, and removing insulation to obtain access for repair work on equipment. (Pls.' Resp., Ex. 2, Deposition of Kenneth Roland McDaniel ("Ken McDaniel Dep.") (Doc. 146-2) at 6.) About four to six years after he began working at Belews Creek in 1974, Mr. McDaniel began working primarily in the control room, "out of the direct impact of the plant." (Id.)

During Mr. McDaniel's employment with Duke Power, the company hired contractors to assist with work at the plant. (Id. at 7.) Daniel International Corporation, Westinghouse, and Defendant were contractors hired by Duke Power, and they, as well as Duke Power employees, (id. at 10), would conduct work during outages, which were periods of time when the boiler wouldbe shut down so that workers could access the turbine, (id. at 7). Mr. McDaniel recalled that there were approximately two scheduled outages per year, as well as unexpected outages, which might last up to a few months. (Id.)

Mr. McDaniel recalled that Duke Power's employees typically removed the insulation, while Covil employees typically installed new insulation after repairs were completed. (See id. at 16-17.) Mr. McDaniel also testified that occasionally "there were times when Covil had to remove" the insulation, but that he did not think insulation removal was in their job description. (Id. at 16.) In those instances where Covil employees conducted insulation work, Mr. McDaniel testified that he was at times "as close as right directly under them and around 20 feet" away. (Id. at 7-8.)

Mr. McDaniel testified that his supervisors at Duke Power instructed him to assist with insulation removal, by removing insulation that encased the turbine or the insulating blankets that were on the throttle valves. (Id. at 19-20.) One of Mr. McDaniel's co-workers and another operator at Belews Creek, Terry Tilley, also stated that, between the 1970s and 1990s, operators removed insulation to help with repairs in the normal course of their work. (Pls.' Resp., Ex. 3, Deposition of Terry Russell Tilley ("Tilley Dep.") (Doc. 146-3) at 5.) Mr. McDanieldescribed the blankets insulation as being encased in a flexible metal fiber that "could be moved easily and could be easily put together," like a "mesh." (Ken McDaniel Dep. (146-2) at 27.) This material would be removed, set aside, and reinstalled once repairs were completed. (See id. at 19-20, 27.) Mr. McDaniel testified that other Duke Power employees were responsible for taking off the solid block insulation from the drive turbines and boiler feed pump, but he was not involved in that work, as he only removed blanket insulation. (Id. at 28.)

Mr. McDaniel said that he did not know whether any of the insulation at the plant to which he was exposed had asbestos in it. (Id. at 16.) He did not know until the mid-1990s that there may be asbestos in the plant, when Duke Power began requiring employees to wear white Tyvek suits. (See id. at 10-11, 17.) Mr. Tilley testified that, when he began working at the plant in 1977, he did not "originally" have any personal knowledge as to whether any of the insulation that was installed during the construction of the plant might contain asbestos, (Tilley Dep. (Doc. 146-3) at 8, 11), and that "it was several years later" during the second half of his career, during the late 1980s and early 1990s when he "first started hearing about it," (id. at 8). He was not personally involved with specifying the types of insulation products that were used in the repairs. (Id. at 13.)Mr. Tilley stated that it is not possible to determine whether any insulating material contains asbestos by sight only. (Id. at 15-16.)

Insulation work created dust in the air, which would land on Mr. McDaniel's clothing, (Ken McDaniel Dep. (146-2) at 8), causing him to "look[] like a snowman." (Id.) Mr. McDaniel did not change his clothes or shower prior to coming home. (Id.; Pls.' Resp., Ex. 4, Deposition of Deborah J. McDaniel ("Deborah McDaniel Dep.") (Doc. 146-4) at 26.)

Mr. and Mrs. McDaniel did not live together under they were married in 1978. (Deborah McDaniel Dep. (Doc. 146-4) at 26.) After they were married, Mrs. McDaniel laundered Mr. McDaniel's clothing, (id. at 25-26), including his work clothes with dust on them, (id. at 8). Mrs. McDaniel would shake out his work clothes and sweep the dust off the floor, which caused her to breathe in the dust. (Id. at 9.) In 2017, Mrs. McDaniel was diagnosed with lung cancer. (See id. at 5; 21.)

II. STANDARD OF REVIEW

Summary judgment is appropriate when "there is no 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); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This court's summary judgment inquiry is whether the evidence "is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The moving party bears the initial burden of demonstrating "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325. If the "moving party discharges its burden . . ., the nonmoving party must come forward with specific facts showing that there is a genuine issue for trial." McLean v. Patten Cmtys., Inc., 332 F.3d 714, 718-19 (4th Cir. 2003)(citing Matsushita Elec. Indus. Co., 475 U.S. at 586-87). Summary judgment should be granted "unless a reasonable jury could return a verdict in favor of the nonmoving party on the evidence presented." Id. at 719 (citing Liberty Lobby, 477 U.S. at 247-48).

When considering a motion for summary judgment, courts must "construe the evidence in the light most favorable to . . . the non-moving party. [Courts] do not weigh the evidence or make credibility determinations." Wilson v. Prince George's Cnty., 893 F.3d 213, 218-19 (4th Cir. 2018).

As a federal court sitting in diversity, this court must apply the choice-of-law rules of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). "In tort actions, North Carolina courts adhere to the rule of lex loci and apply the substantive laws of the state in whichthe injuries were sustained." Johnson v....