United States District Court, S.D. Georgia, Savannah Division
SHEILA B. CARTER, Individually and as Executrix of the Estate of JAMES R. CARTER, Decedent, Plaintiff,
3M f/k/a MINNESOTA MINING & MANUFACTURING COMPANY; WARREN PUMPS, INC.; et al. Defendants.
GODBEY WOOD, DISTRICT JUDGE
the Court is Warren Pumps, Inc.'s ("Warren")
Motion for Summary Judgment. Dkt. No. 127. The Motion is
unopposed. Because the time for response has long passed, the
Motion is ripe for review. For the reasons provided below,
the Motion is GRANTED.
Southern District of Georgia Local Rule 56.1, "[a]11
material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted
unless controverted by a statement served by the opposing
party." Plaintiff has not responded to Warren's
Statements of Undisputed Facts, dkt. no. 127-2. Thus,
pursuant to Local Rule 56.1, these facts are deemed admitted
for the purpose of Warren's Motion for Summary Judgment.
case is an action to recover for personal injury suffered by
the Deceased, James R. Carter. Dkt. No. 127-2 ¶ 1.
Plaintiff alleges that the Deceased contracted lung cancer
and died from said cancer because of his exposure to asbestos
dust, fibers, and particles. Id. ¶ 2. Plaintiff
alleges that the Deceased was exposed to numerous
asbestos-containing products during his long career (from
1968 to 2010) at the ITT Rayonier Plant in Jesup, Georgia.
Id. ¶ 4. The Deceased passed away prior to the
commencement of this action, but his co-worker, Larry Madray,
was deposed as part of discovery in this action. See
Dkt. No. 128-1. While Madray testified that pumps
manufactured, by Warren were near where he and the Deceased
worked as caustic helpers at the ITT Rayonier Plant, Madray
testified that he did not have any specific recollections of
the Deceased "being near pumps while they were being
fixed or replaced by maintenance." Dkt. No. 127-2 ¶
18 (quoting Dkt. No. 128-1 at 126). Further, Madray could not
say whether the Deceased ever worked on Warren pumps at the
ITT Rayonier Plant. Dkt. No. 128-1 at 71. Finally, Madray
never testified that Warren pumps contained asbestos, whether
in the form of dust, fibers, or particles.
the Deceased's alleged exposure to and death from
asbestos dust, fibers, and particles from Warren pumps,
Plaintiff has alleged claims against Warren for negligence
and strict liability. See Dkt. No. 80.
judgment is required where "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."
Fed.R.Civ.P. 56(a). A fact is "material" if it
"might affect the outcome of the suit under the
governing law." FindWhat Inv'r Grp. v.
FindWhat.com, 658 F.3d 1282, 1307 (11th Cir. 2011)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986)). A dispute is "genuine" if the
"evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. In making
this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw
all reasonable inferences in that party's favor.
Johnson v. Booker T. Washington Broad. Serv., Inc.,
234 F.3d 501, 507 (11th Cir. 2000).
moving party bears the initial burden of demonstrating the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant
must show the court that there is an absence of evidence to
support the nonmoving party's case. Id. at 325.
If the moving party discharges this burden, the burden shifts
to the nonmovant to go beyond the pleadings and present
affirmative evidence to show that a genuine issue of fact
does exist. Anderson, 477 U.S. at 257.
nonmovant may satisfy this burden in two ways. First, the
nonmovant "may show that the record in fact contains
supporting evidence, sufficient to withstand a directed
verdict motion, which was Overlooked or ignored' by the
moving party, who has thus failed to meet the initial burden
of showing an absence of evidence." Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)
(quoting Celotex Corp., 477 U.S. at 332 (Brennan,
J., dissenting)). Second, the nonmovant "may come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1117. Where the
nonmovant attempts to carry this burden instead with nothing
more "than a repetition of his conclusional allegations,
summary judgment for the [movant is] not only proper but
required." Morris v. Ross, 663 F.2d 1032,
1033-34 (11th Cir. 1981) (citing Fed.R.Civ.P. 56(e)).
has set forth in her Amended Complaint, dkt. no. 80, Georgia
state law claims against Warren for negligence and strict
liability (and a derivative claim for spousal loss of society
and consortium). Under this record, Plaintiff s claims fail
as a matter of law pursuant to the Georgia Court of Appeals
decision in Williams v. Flintkote Co., 568 S.E.2d
106 (Ga.Ct.App. 2002) . In that case, one of the defendants
moved for summary judgment on the plaintiffs' claims of
negligence and strict liability that were based in
allegations that the plaintiffs "suffered injury from
exposure to asbestos-containing products sold or distributed
by the defendants." Id. at 106. The court
recognized that "[t]o avoid summary judgment, the
[plaintiffs] needed to present evidence that [the
defendant's] asbestos-containing product was used at the
Muscogee and/or Opelika plants," which is where one of
the plaintiffs worked. Id. at 107. In
Williams, the plaintiffs provided no evidence that
the defendant's products "contained asbestos";
"in fact, neither [plaintiff] had heard of [the
likewise, Warren has shown that the record does not contain
evidence that its products at the ITT Rayonier Plant in Jesup
contained asbestos. Warren has shown that based on this
record there is an absence of a genuine issue of material
fact as to whether it manufactured asbestos-containing
products to which the Deceased was exposed. Because Warren
has met its burden on this issue, the burden shifts to the
nonmovant, Plaintiff, to show evidence creating a genuine
dispute on this material fact. ...