[author: Mike Jordan]
South Carolina’s designated asbestos judge, the Hon. D. Garrison Hill, recently ruled that the Lorhmann standard of “frequency, regularity and proximity” articulated in the Fourth Circuit Court of Appeals opinion Lorhmann v. Pittsburg Corning Corp., 782 F.2nd 1156 (4th Cir. 1986) applies in the context of a mesothelioma claim.
Plaintiff’s decedent, Duane Meek, died of mesothelioma at age 74. Plaintiff’s counsel alleged two exposures to asbestos in the complaint. The first was during Meek’s service in the Navy on the U.S.S. Minos from 1953-1955 and the other a premises exposure at an industrial campus in Indiana as a civilian electrician.
The product makers in the case were suppliers for the Navy. Their products, pumps and purifiers, were aboard the Minos.
Meek was not deposed before he died. Plaintiff’s exposure witnesses were a shipmate and a naval expert. The shipmate served contemporaneously with Meek, but did not know him or have any specific information about what Meek did while on the Minos. Nevertheless, he testified generally about the duties of a fireman’s apprentice and electrician’s mate such as decedent. The expert, Capt. William Lowell, while admitting he had no knowledge or documents showing Meek worked on or around asbestos containing products, stated nonetheless that based on his expert knowledge and experience it was likely that Meek would have been exposed to asbestos.
The product makers filed motions for summary judgment. They argued the exposure testimony was simply conjecture which did not meet the “frequency, regularity and proximity” test of Lorhmann.
Plaintiff argued that because Meek had mesothelioma, Lorhmann should not apply. Plaintiff contended that since Lorhmann was not a mesothelioma case, the logic of the opinion is inapplicable. Plaintiff drew the distinction based on the difference in exposure required for different asbestos related diseases. Plaintiff also argued that the testimony of the exposure witnesses created a scintilla of evidence that should defeat the motions, citing the recent South Carolina case Hancock v. Mid-South Management, Inc., 381 S.C. 326, 673 S.E. 2d 801 (2009).
The Court noted that South Carolina adopted the Lorhmann standard in Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E. 2nd 724 (2007). Henderson was a mesothelioma case. The Court acknowledged other jurisdictions had struggled with the issue of different exposures for different diseases, but ruled that since Henderson adopted the standard in the context of a mesothelioma claim, Plaintiff’s legal argument must be rejected.
The Court also held that Plaintiff’s exposure testimony did not create a genuine factual issue for trial. The testimony of the shipmate and Capt. Lowell was “speculation camouflaged as circumstantial factual evidence”.
For now the rule appears to be that “frequency, regularity, and proximity”, as articulated in Lorhmann is the burden a plaintiff must meet, regardless of the disease at issue.