A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in such cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from Foster Wheeler boilers caused the decedent’s mesothelioma.
Judge Norton’s thorough, well-written opinion began by concluding that South Carolina law applied to the diversity action and that South Carolina had unequivocally adopted the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) “frequency, regularity and proximity test” for causation in asbestos cases. The Plaintiff in Sparkman attempted to distinguish Lohrmann, arguing that the standard only applied to asbestosis cases. The Plaintiff urged the Court to follow the Seventh Circuit’s lead and apply a lower “minor exposure” standard in mesothelioma cases. Judge Norton rejected this argument, finding that the South Carolina Supreme Court opinion which actually adopted the Lohrmann standard, Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007), broadly dealt with “mesothelioma and other asbestos-related illnesses.” In other words, the law of South Carolina requires a plaintiff to satisfy the frequency, regularity, and proximity factors in order to establish causation in an asbestos case, regardless of the disease at issue.
The Court then considered whether the evidence satisfied the Lohrmann factors such that there was a genuine issue of material fact as to the allegations that a Foster Wheeler boiler caused the Plaintiff’s mesothelioma. The Court found that there were fatal holes in the proof. For example, while the Plaintiff was perhaps able to show that a Foster Wheeler boiler was in the vicinity of the Plaintiff at relevant times, the Plaintiff was unable to show that the Foster Wheeler boiler was responsible for exposing the Plaintiff to friable asbestos.
In the end, the Court concluded that the Plaintiff “fail[ed] to raise a genuine dispute as to whether [the decedent] was exposed to asbestos from a specific product manufactured by Foster Wheeler, much less on a frequent and regular basis.” Judge Norton’s opinion has several transcendent meanings. First, it means that Plaintiffs must prove that a Defendant was responsible for causing the Plaintiff’s injury, even in an asbestos case. Second, it means co-worker testimony that he or she may remember a defendant’s product being near the Plaintiff isn’t enough to survive summary judgment. And indirectly, this opinion undermines the popular Plaintiff’s “any exposure” causation theory.