# Foushee v. R.T. Vanderbilt Holding Company, Inc.

> District Court, E.D. North Carolina · December 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10653129

## Case

- **Court:** District Court, E.D. North Carolina
- **Decided:** December 17, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10653129

## How later opinions describe it (automated extraction)

- finding insufficient exposure to asbestos dust from a pipe covering product on ten to fifteen occasions of between one and eight hours of duration
- applying the Lohrmann test in a mesothelioma case under South Carolina tort law
- holding that invoice evidence, standing alone, was not sufficient to establish that a particular product was a substantial contributing factor where invoices showed only the purchase of asbestos-containing product, but not when or where the product was used

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
CASE NO. 5:17-CV-00071-M

BELINDA LIPSCOMB FOUSHEE, as )
Personal Representative of the Estate of )
Anneka Foushee, )
Plaintiff, )
)
V. )
)
R.T. VANDERBILT HOLDING ) OPINION AND ORDER
COMPANY, INC., Individually and as )
Successor in Interest to R.T. Vanderbilt )
Company, Inc., VANDERBILT )
MINERALS, LLC, f/k/a R.T. Vanderbilt )
Company, Inc., Individually and as )
Successor in Interest to International Talc)
Co., )
Defendants. )

This matter is before the court on Defendants’ Motion for Summary Judgment [DE-76].
For the reasons explained below, Defendants’ motion is GRANTED.
I. Abbreviated Procedural History
Belinda Lipscomb Foushee (hereinafter “Plaintiff’) alleges that her daughter, Anneka
Foushee (hereinafter “Anneka”), contracted and ultimately died from an asbestos-related disease,
mesothelioma, after she was exposed to Defendants’ asbestos-containing product found in ceramic
materials she used as a student at Appalachian State University (“ASU”) in the mid-1990s. Compl.
q{ 7-8, 12-15, DE-1. The specific material in question, NYTAL 100 HR talc (hereinafter “NYTAL
100”), see generally Def.’s Am. Mem. in Supp. of the Mot. for Summ. J., DE-79, was allegedly
supplied to ASU by Defendants via a non-party to this lawsuit, Highwater Clays of Ashville, North
Carolina, (hereinafter “Highwater”). DE-1 {§ 9-11.

On February 9, 2017, Plaintiff filed this federal suit against Defendants for negiigent failure
to warn, breach of implied warranty, negligent design, gross negligence, and wrongfui death. Jd.
17-58. Jurisdiction is based on diversity of citizenship and amount in controversy pursuant to
28 U.S.C. § 1332. Jd. ¥ 5. Since filing suit almost four years ago, the parties have sought no less
than nine extensions to the scheduling order. See DE-20, 26, 27, 30, 32, 55, 63, 65, 73.
The operative scheduling order [DE-74] allowed the parties to refile dispositive motions
by September 11, 2020. By this deadline, Defendants filed this instant motion for summary
judgment and associated briefing [DE-76 (motion), 79 (amended memorandum in support), 81
(statement of material facts)] and withdrew their previous motion at Docket Entry 45 [DE-80
(notice of motion withdrawal)]. Plaintiff responded in opposition on October 9, 2020 [DE-105]
and supplied a response to Defendants’ statement of material facts [DE-108]. Defendants replied
- in support of their motion on October 23, 2020 [DE-112]. Oral argument on the motion took place
on December 8, 2020 [DE-125]. The motion is ripe for ruling.
I. Factual Background
For the purposes of summary judgment, the court finds that the following facts are material
and undisputed. Professor Eric Reichard (hereinafter “Reichard’’) is a master potter and long-time
professor at ASU. Reichard Dep. at 10:6-16, 9:5-11. He has taught the Ceramic Technology course
since approximately 1973. Reichard Dep. at 16:22-17:4. Anneka was enrolled in this course in the
Fall of 1995 along with classmate Myah Drumm (hereinafter “Drumm’”). Pl.’s Ex. 2, DE-108-3
(Anneka Transcript) & Pl.’s Ex. 8, DE-108-9 (Drumm Transcript). The class met twice a week, on
Mondays and Wednesdays, from 10 am to 11:50 am. Reichard Dep. at 17:9-16. Class would
usually begin with a project demonstration by Reichard; Reichard then walked through the studio
monitoring students and providing feedback as they each began to replicate the work. Drumm Dep.

at 39:20-40:5. During the course, students would have the opportunity to work with clay products
and glazes, but not raw talc or slip. Reichard Dep. at 18:8-20; 23:8-11.
The course also had a lab component, providing students additional studio time in which
to complete projects for the course. Reichard Dep. at 17:17-22. Drumm recalled that students were
advised to spend roughly three hours in the studio, in addition to class time, to complete work for
the course. Drumm Dep. at 14:16-15:6, 81:2-6. The semester was approximately fourteen weeks
long. Drumm Dep. at 74:25-75:8; Reichard Dep. at 63:7-13.
Since the 1970s, Reichard purchased most of the supplies necessary for his ceramics course
from Highwater. Reichard Dep. at 26:8-15, 30:21-24. Though sales records for this time period do
not exist, supplies purchased by ASU from Highwater would have included clay and raw talc.
Reichard Dep. at 26:16-27:3 (clay and chemicals such as silica), 36:14-20 (talc). Reichard only
purchased mid-range to high-range stoneware clays from Highwater. Reichard Dep. at 39:14-19.
Stoneware clay was the only type of clay used in his course. Reichard Dep. at 41:17-22. Reichard
speculated that certain stoneware clay could have contained talc as an ingredient but was uncertain
as that was considered proprietary information. Reichard Dep. at 51:10-24. Reichard used raw talc
as a component ingredient for the glazes he mixed in a designated area of the studio. Reichard
Dep. at 36:11-24; see also Pl.’s Ex. 16, DE-108-17 (Reichard’s Glaze Recipes). His students did
not work with talc. Reichard Dep. at 18:14-20.
Highwater blended clays, and clay bodies, then sold these clays and related equipment to

its customers. B. McCarthy Dep. at 9:21-10:5. Highwater purchased the raw materials necessary
to manufacture clays from various sources. B. McCarthy Dep. at 12:18-23. One such material was
NYTAL 100 purchased from Defendants. B. McCarthy Dep. at 12:24-13:2; 16:6-10. In 1995
specifically, Highwater purchased 302,000 pounds of NYTAL 100 from Defendants. PI.’s Ex. 14

at 4, DE-108-15 (Vanderbilt sales records to Highwater, 1985-2000). The owners of Highwater,
Brian and Gail McCarthy (hereinafter “B. McCarthy” and “G. McCarthy,” respectively) no longer
have documentation or recipes indicating the ingredients used to make the various types of clays
they manufactured and sold. B. McCarthy Dep. at 18:20-20:4; G. McCarthy Dep. at 94:19-95:14.
They did recall one specific clay that incorporated NYTAL 100: white earthenware clay. G.
McCarthy Dep. at 22:2-19; B. McCarthy Dep. at 16:21-17:21. White earthenware clay was not
purchased by universities because it was a low-fire clay and universities primarily used high-fire
clays. B. McCarthy Dep. at 40:17-42:17. Talc would not be an ingredient in high-fire clays because
of its melting point; it is therefore primarily an ingredient in low-fire, white clays. Jd. B. McCarthy
did not rule out the possibility that there were other Highwater clays, besides the white earthenware
clay, that also contained talc as an ingredient. B. McCarthy Dep. at 31:22-32:9. Highwater resold
Defendants’ NYTAL 100 to its customers. G. McCarthy Dep. at 82:7-10. Defendants’ description
of NYTAL 100’s packaging—fifty-pound brown paper bags—matched the description of the tale
packaging provided by B. McCarthy, G. McCarthy, and Reichard. Pl.’s Ex. 13 at 4, 7, DE-108-14
(Defendants’ Answers to Interrogatories); B. McCarthy Dep. at 15:23-16:10; G. McCarthy Dep.
at 34:5-24; Reichard Dep. at 62:9-23, 65:9-24.
The ceramics studio was dusty; Drumm testified that “there was dust from the clay that
was sort of in the air. It wasn’t billowing out, but it was something that you could taste and smell
....” Drumm Dep. at 22:13-16. The dust was attributed to dry clay. Drumm Dep. at 22:13-20,
24:2-5, 31:9-21, 33:2-14, 44:17-22. It was common practice for students to wear an apron in the

_ ceramics studio and Drumm wore an apron while she worked in the studio. Drumm Dep. at 26:5-
10. Drumm took ceramics courses in the Fall of 1995, in the Spring of 1996, and also testified that
she completed an “incomplete credit” in the Fall of 1996. Drumm Dep. at 7:9-16, 61:24-62:5.

Drumm wiped her hands off on the apron as she worked with clay or got “spatter” on it from the
clay she was working with. Drumm Dep. at 27:4-12. Most of the time Drumm would not wash her
apron, she would simply brush off the flakes of clay residue. Drumm Dep. at 27:13-19. Ata certain
point in time—unclear from the record—Drumm stopped washing her apron altogether, but she
testified that the apron would still have residue from the class she specifically took in the Fall of
1995. Drumm Dep. at 28:7-12. Before being turned over for inspection and testing, Drumm kept
the apron rolled up in a plastic bag that was stored in a box since her time as a student. Drumm
Dep. at 28:13-21.
Dr. William Longo analyzed residue from Drumm’s apron. See, e.g., Pl.’s Ex. 17, DE-108-

18 (Dr. Longo 2018 Expert Report). Testing revealed the presence of both anthophyllite and
tremolite asbestos fibers on the apron, at a concentration of “22,600,000 fiber bundles per gram of
the clay composite.” /d. at 3, 4. Although the presence of talc on the apron could not be verified
by Dr. Longo and his team, they concluded that the source of the asbestos fibers found on the
apron was Defendants’ NYTAL 100, based on number of things, including a review of the
deposition testimony and record evidence in the case and specialized comparison testing
performed on a 2004 sample of NYTAL 100. PI.’s Ex. 19, DE-108-20 at 3-6 (Dr. Longo 2020
Expert Report). Dr. Longo’s testing also confirmed that bystanders would be exposed to airborne

asbestos fibers when NYTAL talc was poured into a plastic bucket using two to three continuous
pouring motions—simulating how students could have occupational exposures if present in the
studio during the mixing of glazes. DE-108-18 at 11.
Anneka was diagnosed with cervical cancer in 1998. Defs.’ Ex. E, DE-79-5 (Anneka’ CT

- gcan records, 1998). For this she was treated with a combination of radiation and chemotherapy.
Td. at 3-4; see also P\.’s Ex. 30 at 1, DE-108-31 (Dr. Finkelstein Expert Report). Anneka was

diagnosed with peritoneal mesothelioma in July 2014, a rare disease with known causes that
include the inhalation of erionite and fluoro-edenite fibers, therapeutic radiation, and inhalation of
asbestos. Pl.’s Ex. 30, DE-108-31 at 3, 27. Anneka passed away in February 2015 at the age of
forty-one with peritoneal mesothelioma as the cause of death. Pl.’s Ex. 32, DE-108-33 (Death
Certificate).
Ill. Legal Standards
A. Summary Judgment Legal Standard
If “the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law” the court shall grant summary judgment. Fed. R. Civ.
P. 56(a). A dispute is “genuine” if the evidence would permit a reasonable jury to find for the
nonmoving party, and “[a] fact is material if it might affect the outcome” of the litigation. Jacobs
v. N.C. Admin. Office of the Courts, 780 F.3d 562, 568 (4th Cir. 2015) (internal quotations and
citations omitted). The court’s role at the summary-judgment stage is not “to weigh the evidence
and determine the truth of the matter” but instead “to determine whether there is a genuine issue
for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Accordingly, the court must
“resolve all factual disputes and any competing, rational inferences in the light most favorable” to
the nonmoving party. Rossignol y. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting
Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)).

Where the nonmovant will bear the burden of proof at trial, the party seeking summary
judgment bears the initial burden of “pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). If the moving party carries this initial burden, the burden then shifts to the nonmoving
party to point out “specific facts showing that there is a genuine issue for trial.” Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting the Federal Rules of Civil
Procedure). In so doing, “the nonmoving party must rely on more than conclusory allegations,
mere speculation, the building of one inference upon another, or the mere existence of a scintilla
evidence.” Dash v. Mayweather, 731 F.3d 303, 311 (4th Cir. 2013). Instead, the nonmoving
party must support its assertions by “citing to particular parts of . . . the record,” or by “showing
that the materials cited do not establish the absence . . . of a genuine dispute.” Fed. R. Civ. P.
56(c)(1); see Celotex, 477 U.S. at 324. While “it is the province of the jury to resolve conflicting
inferences from circumstantial evidence[,] [p]ermissible inferences must still be within the range
of reasonable probability.” Ford Motor Co. v. McDavid, 259 F.2d 261, 266 (4th Cir. 1958), cert.
denied, 358 U.S. 908 (1958). It is “the duty of the court to withdraw the case from the jury when
the necessary inference is so tenuous that it rests merely upon speculation and conjecture.” Jd.
B. North Carolina Law of Causation in Asbestos Cases
A district court exercising diversity jurisdiction 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, 496-97 (1941). “In tort
actions, North Carolina courts adhere to the rule of lex loci and apply the substantive laws of the
state in which the injuries were sustained.” Johnson v. Holiday Inn of Am., Inc., 895 F. Supp. 97,
98 (M.D.N.C. 1995); Boudreau v. Baughman, 322 N.C. 331, 335, 368 S.E.2d 849, 854 (N.C. 1988)
(“This Court has consistently adhered to the lex loci rule in tort actions.”). Anneka’s alleged
exposure to the Defendants’ product occurred in North Carolina, as did the mesothelioma
diagnosis. Accordingly, the court will apply North Carolina’s substantive law.
The North Carolina Supreme Court has said that a plaintiff in an asbestos case “must
demonstrate that he was actually exposed to the alleged offending products. It will not be enough

for plaintiff simply to show that various products were shipped to various job sites on which he

worked.” Wilder v. Amatex Corp., 314 N.C. 550, 553-54, 336 S.E.2d 66, 68 (N.C. 1985). The
Fourth Circuit has recognized that requiring direct evidence of product identification is
unreasonable and that circumstantial evidence can instead be used to establish a plaintiff's
exposure to a specific product. See Roehling v. Nat'l Gypsum Co. Gold Bond Bldg. Prods., 786
1225, 1228-29 (4th Cir. 1986) (finding that a reasonable inference could be drawn to establish
that plaintiff was in the same limited area as those witnesses who could specifically identify
defendants’ products as causing the asbestos dust in that discrete area); but see Lohrmann v.
Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) (holding that invoice evidence,
standing alone, was not sufficient to establish that a particular product was a substantial
contributing factor where invoices showed only the purchase of asbestos-containing product, but
not when or where the product was used).
In a similar vein, the Fourth Circuit, in the asbestos context, has held that once a specific
product has been identified, “there must be evidence of exposure to [that] specific product on a
regular basis over some extended period of time in proximity to where the plaintiff actually
worked.” Lohrmann, 782 F.2d at 1162-63. This test is often referred to as the “frequency,
regularity, and proximity test.” See, e.g., Pace v. Air & Liquid Sys. Corp., 642 F. App’x 244, 247
(4th Cir. 2016) (internal quotations omitted). Though the Lohrmann case involved Maryland law,
the Fourth Circuit found the test to be equally applicable in cases based on North Carolina law.
Jones v. Owens-Corning Fiberglas Corp. & Amchem Prods., Inc., 69 F.3d 712, 716 n.2 (4th Cir.

1995). Furthermore, though the Lohrmann case involved a different asbestos-related disease,
asbestosis, “federal courts in North Carolina have routinely appied! Lohrmanr’s ‘frecquency,
regularity. and proximity’ test to evaluate proximate causation in asbestos cases, incl uding thse
involving mesothelioma, arising under North Carolina law.” Connor v. Norfolk S. Ry. Co., No.

1:17CV127, 2018 WL 6514842, at *3, n.5 (M.D.N.C. Dec. 11, 2018), appeal filed No. 19-1015
(4th Cir. Jan. 4, 2019) (collecting cases); see also Pace, 642 F. App’x at 247-48 (applying the
Lohrmann test in a mesothelioma case under South Carolina tort law).
Whether there is sufficient evidence in the record to satisfy the “frequency, regularity, and
proximity” test is a legal determination. Compare Haislip v. Owens-Corning Fiberglas Corp., 86
F.3d 1150, at *1-3 (4th Cir. 1996) (unpublished table decision) (finding evidence of being fully
covered with asbestos dust each day, generated from cutting newly-installed pipes, nine hours per
day, five days per week, over a nine-month period sufficient to support the jury’s verdict that there
was exposure with the requisite frequency, regularity, and proximity); Jones, 69 F.3d at 716
(exposure to asbestos dust on a daily basis for approximately twenty years); Yates v. Air & Liquid
Sys. Corp., No. 5:12-cv—752-FL, 2014 WL 4923603, at *22, 25 (E.D.N.C. Sept. 30, 2014)
(finding daily exposure, multiple times each day, to visible dust from an asbestos-containing
product over a five-month period meets the Jones/Lohrmann test) with Lohrmann, 782 F.2d at
1163 (finding insufficient exposure to asbestos dust from a pipe covering product on ten to fifteen
occasions of between one and eight hours of duration); Smith v. 3M Co., No. 1:16CV379, 2019
WL 1116718, at *4 (M.D.N.C. Mar. 11, 2019) (finding that eighteen months of work as a pipefitter
construction site, including eight months of significant insulation work that involved cutting
insulation which occasionally created dust that could have been inhaled, too vague and speculative
to satisfy the Lohrmann test), appeal filed, No. 19-1391 (4th Cir. Apr. 15, 2019); Young v. Am.
Talc Co., No. 1:13CV864, 2018 WL 9801011, at *5 (M.D.N.C. Aug. 3, 2018) (granting summary

_ judgment where evidence showed exposure to Defendant-attributable asbestos on just thirteen
specific instances with missing information regarding the length of the exposures).

To meet this evidentiary burden, a plaintiff must demonstrate what is probable. See Sakaria
v. Trans World Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993) (“In a long line of decisions in this
circuit, we have emphasized that proof of causation must be such as to suggest ‘probability’ rather
than mere ‘possibility,’ precisely to guard against raw speculation by the fact finder.”’). Earlier this
year this court further explained that when an injury may have more than one cause, “the plaintiff
must introduce evidence which affords a reasonable basis for the conclusion that it is more likely
than not that the conduct of the defendant was a substantial factor in bringing about the result. A
mere possibility of such causation is not enough.” Cahoon v. Edward Orton, Jr. Ceramic Found.,
No. 2:17-CV-63-D, 2020 WL 918753, at *7 (E.D.N.C. Feb. 24, 2020) (internal quotations and
citation omitted).
IV. Analysis
Defendants’ make three arguments in their Motion for Summary Judgment: (1) no product
attributable to the Defendants has been appropriately identified, (2) assuming product
identification has been established, there was no exposure to the product with the requisite
frequency, regularity, and proximity, and (3) there is an alternative cause of Anneka’s
mesothelioma.
The Defendants argue the NYTAL 100, though sold to Highwater during the relevant time
period, was not incorporated into any clay product Highwater sold to ASU. DE-79 at 8-9. They
rest this argument on the fact that NYTAL 100 is an ingredient used only in low-fire, earthenware
clays. DE-81 4 4. Universities in general, and ASU in particular, purchased mid- to high-fire,
stoneware clays. Id. § 4, 7. While Professor Reichard purchased raw tale from Highwater in order
make glazes, students did not directly work with talc. Id. § 6.

10

On the other hand, Plaintiff claims there is evidence to support the fact that NYTAL 100
was an ingredient incorporated into clays sold to ASU and was a raw ingredient purchased directly
by ASU for use in glazes, which students would have been exposed to even if they did not directly
engage in mixing glazes. DE-105 at 18, 21-22. Plaintiff further contends that testing on Drumm’s
apron, preserved from her time as a student in the same class as Anneka, confirmed the presence
of asbestos fibers anthophyllite and tremolite. Jd at 18-19. This “matched the signature of

Vanderbilt’s NYTAL 100HR talc” because Vanderbilt talc, including NYTAL 100HR, has been
tested extensively by MAS [Materials Analytical Services, LLC] as well as other industrial and
scientific groups. Id.
Sales records from the relevant time period confirm that Highwater purchased NYTAL 100
from Defendants. DE-108-15 at 4. However, there are no corresponding sales records from
Highwater to ASU to confirm which clays were sold to the university and whether or not raw talc
was sold in 1995 or the surrounding time period. Nor are there Highwater recipe cards or testimony
to definitively confirm the universe of clays that incorporated NYTAL 100 as an ingredient. See,
e.g., B. McCarthy Dep. at 18:20-19:6. There are recipe cards available from Professor Reichard
that list “talc” as an ingredient in various glaze recipes. Pl.’s Ex. 16, DE-108-17 (Reichard’s Glaze
Recipes).
Professor Reichard confirmed that ASU purchased most ceramics supplies from Highwater
the 1970s. Reichard Dep. at 26:8-15, 30:21-24. Professor Reichard testified that ASU only
purchased mid-range to high-range stoneware clays from Highwater. Reichard Dep. at 39:14-19.
The McCarthys recalled only one specific clay that incorporated NYTAL 100: white earthenware
clay. G. McCarthy Dep. at 22:2-19; B. McCarthy Dep. at 16:21-17:21. B. McCarthy testified that
this was not a clay purchased by universities. B. M:Carthy Dep. at 40:17-42:17. However, he did

11

not rule out the possibility that other Highwater clays contained talc as an ingredient, B. McCarthy
Dep. at 31:22-32:9, which seems plausible given the quantity of talc purchased by Highwater
during the relevant time period. DE-108-15 at 4 (indicating 302,000 lbs. of NYTAL 100 purchased
~ in 1995).
Professor Reichard testified that raw talc was also purchased from Highwater and was
mixed in the glazing area of the ceramics studio to create glazes. Reichard Dep. at 36:11-24.
Professor Reichard’s description of the talc packaging matched descriptions provided by both the
McCarthys and Defendants suggesting a high probability that this raw talc was NYTAL 100.
Compare Reichard Dep. at 62:9-23, 65:9-24 (50-pound brown bags) with B. McCarthy Dep. at
15:23-16:10 (50-pound bags); G. McCarthy Dep. at 34:5-24 (50-pound bags); DE-108-14 at 4, 7
(50-pound brown paper bags). While Professor Reichard said that students did not come into direct
contact with talc, Reichard Dep. at 18:14-20, testing done by Plaintiff expert Dr. Longo suggests
that students could have been exposed to airborne asbestos fibers released during the mixing of
glazes, DE-108-18 at 11. Furthermore, Dr. Longo’s testing revealed the presence of high
concentrations of asbestos fibers on the apron—worn by Drumm during the ceramics course in the
Fall of 1995 and in subsequent semesters—and opined that Defendants’ NYTAL 100 was the
source of those asbestos fibers. DE-108-18, DE-108-20; Drumm Dep. at 7:9-16, 61:24-62:5.
Based on this evidence, and all inferences drawn in the light most favorable to the Plaintiff,
a reasonable jury could conclude that Defendants’ NYTAL 100 product was present in the ASU
ceramics studio in 1995 and that Anneka was exposed to it by virtue of her participation in the
class. Based on the evidence and all inferences drawn in tie light most favorable to the Plaintiff,

12

most likely vehicle of transmission of the asbestos fibers in the studio was through the use of
NTYAL 100! as acomponent ingredient in glazes.
However, Plaintiff has failed to forecast evidence sufficient to demonstrate the length of
the exposures. There is no evidence regarding the exact length of the academic semester in the Fall
of 1995 but based on the record the court will assume it lasted fourteen weeks. Plaintiff posits that
it was “a twenty-something week semester,” DE-105 at 23, but the offered citations to the record
do not discuss the length of the semester, only the length of the course itself and the associated lab
component. Additional testimony suggests that the semester was approximately fourteen weeks
long. See Drumm Dep. at 74:25-75:8 (“Ms. Foushee was just in this class for. . . three and a half
months potentially? A. Sure.’’); see also Reichard Dep. at 63:7-12 (“The fall semester at [ASU],
would that take place from September to December? A. Yes, sir. I think it is August, but... Q.
August to December? A. The first of December; yes, sir.”). The class met twice a week for a total
of three hours and forty minutes per week, Reichard Dep. at 17:9-16, and Anneka was enrolled in
and passed the course, DE-108-3 at 2, but there is missing information regarding Anneka’s
attendance record.* Also unknown is the number of hours Anneka specifically spent in the “lab”
portion of class. Testimony suggests that this was not monitored time, but rather an opportunity
for students to continue work on projects that they did not complete during the allotted class time.
See Reichard Dep. at 17:17-22 (“Q. During the Ceramic Technology course was there also, for
lack of a better term I will use lab hours where students could come into the classroom and continue

' For purposes of the present motion, Defendants did not contest the assertion that their NYTAL
100 product contained asbestos but reserved the right to do so should the case proceed to trial.
Hr’g Tr. at 37:7-12, DE-126.
* Plaintiff's counsel did point out at oral argument that Anneka received a grade of “B” for the
ceramics class, implying that she must have regularly attended class as well as the lab portion to
receive such a high grade, especially when compared to the rest of her academic transcript. Hr’g
at 20:1-5, DE-126.
13

the projects that they had for the course? A. Yes, sir.”); see also Drumm Dep. at 14:16-15:6
(discussing that students were advised to complete three hours of open studio time in addition to
class time); Drumm Dep. at 81:2-6 (stating that Drumm did not remember if lab attendance was
required to pass the ceramics course). Viewing this evidence and all rational inferences in the light
favorable to Plaintiff, Anneka spent a maximum of six hours and forty minutes in the
ceramics studio per week for a total of fourteen weeks. Rounding up, this equates to a maximum
of 94 hours in the ceramics studio, or ten, nine-and-a-half-hour days. See Lohrmann, 782 F.2d at
1163 (finding insufficient exposure to asbestos dust from a pipe covering product on ten to fifteen

occasions of between one and eight hours of duration); Smith, 2019 WL 1116718, at *4 (finding
that eighteen months of work as a pipefitter on a construction site, including eight months of
significant insulation work that involved cutting insulation which occasionally created dust that
could have been inhaled, too vague and speculative to satisfy the Lohrmann test); Young, 2018

_ WL 9801011, at *5 (granting summary judgment where evidence showed exposure to Defendant-
attributable asbestos on just thirteen specific instances with missing information regarding the
length of the exposures).
Importantly however, total time spent in the ceramics studio does not equate to total time
- of asbestos-exposure. The testimony regarding the airborne dust that was pervasive in the studio
pertained to clay. Drumm Dep. at 22:13-20, 24:2-5, 31:9-21, 33:2-14, 44:17-22. As discussed
above, the most likely vehicle of transmission of asbestos fibers from NYTAL 100 into the studio
was through the use of NITYAL 100 as a glaze component. The reasonable inference is that
Professor Reichard would not have been mixing glazes using NYTAL 100 during the allotted class
time of one hour and fifty minutes twice per week based on testimony that the Professor would
begin each class by demonstrating the day’s project and then walk around to monitor student

14

progress. Drumm Dep. at 39:20-40:5. There has been no evidence presented to show the number
of times throughout a semester Professor Reichard mixed glazes using talc, whether he did so
while students were physically present in the studio (thereby potentially being exposed to airborne
particles), whether Anneka in particular would have been in the studio at those times, the frequency
with which Anneka would have used the already-mixed, wet glazes herself, and how and whether
the already-mixed glazes could release asbestos fibers from incorporated talc and furthermore to
be inhaled to a sufficient degree. That Anneka attended class and lab regularly and that a
classmate’s apron—worn during two, and possibly three semesters—was heavily contaminated
with asbestos fibers is insufficient for Lohrmann. Expert testimony regarding the extent of asbestos

_ fibers found on the Drumm apron presumed as a foregone conclusion the sufficiently of the length
of exposure and is therefore not helpful to the court. In short, based on the extent of missing
information, no reasonable jury could conclude from the evidence presented to this court that
Anneka was exposed to NYTAL 100 with the necessary frequency, regularity, and proximity, such

- that it was the probable cause of her later development of mesothelioma. It is therefore “the duty
of th[is] court to withdraw the case from the jury [because] the necessary inference[s are] so
tenuous that [they] rest[] merely upon speculation and conjecture.” Ford, 259 F.2d at 266. Given
this determination, the court will not address the Defendants’ final argument regarding an
alternative cause of Anneka’s mesothelioma.

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V. Conclusion
For the reasons outlined above, the Court GRANTS Defendants’ Motion for Summary
Judgment [DE-76]. In light of this, the outstanding motions in limine at Docket Entries 85, 87, 89,
91, 93, 95, 97, 98, 100, and 103 are hereby DENIED as moot. Plaintiff's claims against Defendants
are hereby DISMISSED. The clerk shall close the case.

SO ORDERED this the |G day of December, 2020.

RICHARD E. MYERS II
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653129. Public record. Not legal advice.