The opinion of the court was delivered by: Eduardo C. Robreno, J.
Defendant National Service Industries ("NSI"), the last remaining viable defendant in this action, filed the instant motion for summary judgment pursuant to Fed. R. Civ. P. 56(b). For the reasons that follow, Defendant's motion for summary judgment will be granted.
Plaintiff filed the complaint in this action on July 5, 2005, asserting claims for the wrongful death of Harry Hogston ("Decedent"). The Decedent had developed mesothelioma, a cancer of the lining of the lungs, which caused his death. Plaintiff alleges that the Decedent's mesothelioma was caused by exposure to asbestos at the Olin Chemical Corporation Plant (the "Plant") at Saltville, Virginia.
The Decedent was employed at the Plant from 1958-1972 as a member of the Plant's maintenance crew. As a member of the maintenance crew, the Decedent worked with pipe covering and block insulation, which contained asbestos. Plaintiff claims that the Decedent's work with this insulation and pipe covering was very dusty, and it is likely that he would have inhaled a substantial amount of asbestos fiber during his fourteen years at the Plant.
The specific claims against NSI arise from the activities of North Brothers, Inc., a predecessor in interest to NSI, which was a distributor of Owens-Corning products, including asbestos-containing Kaylo pipe covering and insulation*fn1 , located in the southeastern part of the United States. Plaintiff alleges that there is significant circumstantial evidence which shows both that North Bros. distributed Kaylo pipe covering and insulation to the Plant during the time that Decedent was employed there and that Decedent was exposed to the Kaylo distributed by North Bros. Plaintiff avers that North Bros. was negligent in distributing the Kaylo pipe covering and insulation, rendering the conduct of North Bros. a substantial factor in causing the Decedent's death.
Defendant moved for summary judgment on two grounds. First, Defendant alleges that Plaintiff cannot show that the Decedent was exposed to Kaylo asbestos which North Bros. distributed. Second, assuming that North Bros. distributed Kaylo to the Plant at the relevant time, Defendant argues that Plaintiff cannot show that any asbestos product distributed by North Bros. to the Plant was the proximate cause of the Decedent's death.
II. LEGAL STANDARD - MOTION FOR SUMMARY JUDGMENT
Summary judgment is proper when "the pleadings, the discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).*fn2 A fact is "material" if its existence or non-existence would affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is "genuine" when there is sufficient evidence from which a reasonable jury could find in favor of the non-moving party regarding the existence of that fact. Id. at 248-49. "In considering the evidence, the court should draw all reasonable inferences against the moving party." El v. SEPTA, 479 F.3d 232, 238 (3d Cir. 2007).
"Although the initial burden is on the summary judgment movant to show the absence of a genuine issue of material fact, 'the burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)). Once the moving party has thus discharged its burden, the nonmoving party "may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in [Rule 56]--set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2).
A. Virginia Substantive Law - Proving Exposure to Asbestos
Under Virginia law,*fn3 a plaintiff may prove exposure to an asbestos product relying only on circumstantial evidence. Owens-Corning Fiberglas Corp. v. Watson, 413 S.E.2d 630, 639 (Va. 1992). "Although the fact-finder is not authorized to indulge in speculation or guesswork, this does not destroy the weight of circumstantial evidence in fixing civil liability . . . [b]ut such circumstantial evidence must be sufficient to establish that the result alleged is a probability rather than a mere possibility". Id. Recognizing that when direct evidence is not available, it is unlikely that the Plaintiff would be able to prove the elements of their ...