                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 08-1165


MELODEE WHITE, Administratrix of the Estate of John H.
White, deceased, individually and as next friend and
guardian of M. W., an infant under the age of eighteen,

                 Plaintiff - Appellant,

           v.

THE DOW CHEMICAL COMPANY, a foreign corporation;            DOW
AGROSCIENCES L.L.C., a foreign corporation,

                 Defendants – Appellees,

           and

JOHN DOE HERBICIDE AND CHEMICAL MANUFACTURING CORPORATION;
JOHN DOE HERBICIDE AND CHEMICAL DISTRIBUTING CORPORATION;
E.I. DUPONT DE NEMOURS & COMPANY, INCORPORATED, a foreign
corporation; ASPLUNDH TREE EXPERT COMPANY, a foreign
corporation;   ARBORCHEM   PRODUCTS   COMPANY, a   foreign
corporation; MONSANTO COMPANY, a foreign corporation;
PHARMACIA CORPORATION, a foreign corporation,

                 Defendants.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.  Joseph R. Goodwin,
Chief District Judge. (2:05-cv-00247)


Argued:   January 28, 2009                   Decided:   April 8, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur           L.
ALARCÓN, Senior Circuit Judge of the United States Court          of
Appeals for the Ninth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.


ARGUED: Samuel A. Hrko, SEGAL LAW FIRM, Charleston, West
Virginia, for Appellant.     Dean Taylor Barnhard, BARNES &
THORNBURG, Indianapolis, Indiana, for Appellees.    ON BRIEF:
Scott S. Segal, SEGAL LAW FIRM, Charleston, West Virginia, for
Appellant.     Joseph G. Eaton, William A. Hahn, BARNES &
THORNBURG, Indianapolis, Indiana; Paul J. Loftus, Marc E.
Williams, HUDDLESTON BOLEN, L.L.P., Huntington, West Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Melodee       White    (“Plaintiff”)             appeals       from    the        district

court’s    order     granting       summary       judgment      in    favor       of    the    Dow

Chemical      Company       and      Dow    Agrosciences             L.L.C.       (the        “Dow

Defendants”).           Mrs. White, a citizen of Randolph County, West

Virginia, filed this products liability action on March 24, 2005

against the Dow Defendants, E.I. du Pont de Nemours and Company,

a   foreign    corporation          (“DuPont”),        Arborchem          Products       Co.,   a

foreign    corporation,          Monsanto   Company,        a    foreign        corporation,

Pharmacia     Corporation,          a   foreign        corporation,         Asplundh          Tree

Expert     Co.,     a    foreign        corporation       (“Asplundh”),                John    Doe

Herbicide     and    Chemical       Manufacturing         Corporation(s),              and    John

Doe Herbicide and Chemical Distributing Corporation(s), as the

Administratrix of the estate of her deceased husband, John W.

White, and in her individual capacity and as next friend and

guardian of her minor child.                      She filed this action in the

United States District Court for the Southern District of West

Virginia pursuant to 28 U.S.C. § 1332, based on the district

court’s    diversity        of    citizenship       jurisdiction           over    causes       of

action between citizens of different states where the amount in

controversy exceeds the sum of $75,000, exclusive of interest

and costs.

      Plaintiff alleged in her complaint that Mr. White died of

chronic    myelogenous           leukemia   as     a    result       of   the     defendants’


                                              3
negligence, breach of warranty, and strict liability, because he

was exposed to their herbicides and/or pesticides while he was

employed    by     Asplundh.       Subsequently,     Plaintiff    amended     her

complaint naming only the Dow Defendants, DuPont, Asplundh, and

the John Doe Herbicide and Chemical Distributing Corporation(s).

In the amended complaint, Plaintiff alleged the same causes of

action.

      The district court granted summary judgment in favor of the

Dow Defendants.       It held that Plaintiff failed to show that her

husband’s injuries were caused by the Dow Defendants’ products.

Plaintiff contends that the district court erred in granting the

Dow   Defendants’      motion      for   summary     judgment     because     she

presented   sufficient      evidence     “from   which   a   reasonable     juror

could return a verdict in favor of the Plaintiff.”                     We affirm

because we conclude that the evidence presented by Plaintiff in

opposition to the Dow Defendants’ motion for summary judgment

was insufficient under West Virginia’s products liability law to

demonstrate that any of the Dow Defendants’ herbicides caused

Mr. White’s illness.

                                         I

                                         A

      Plaintiff     filed   her    original   complaint      against   John   Doe

Herbicide   and     Chemical    Manufacturing    Corporation(s);       John   Doe

Herbicide    and     Chemical     Distributing     Corporation(s);      The   Dow


                                         4
Chemical      Company,       a    foreign        corporation;               Dow    Agrosciences,

L.L.C., a foreign corporation; E. I. du Pont de Nemours and

Company,    a   foreign       corporation;            Asplundh         Tree       Expert    Co.,    a

foreign     corporation;               Arborchem          Products          Co.,     a      foreign

corporation; Monsanto Company, a foreign corporation; Pharmacia

Corporation, a foreign corporation.

      She alleged in Count I that each of the defendants except

for Asplundh (“The Chemical Defendants”) were liable for their

negligence      in     manufacturing,            processing            or     supplying       toxic

chemicals     that     Mr.   White        used       as    an    Asplundh         employee    which

caused him to develop chronic myelogenous leukemia, which was

the cause of his death.

      In Count II, Plaintiff alleged that the Chemical Defendants

were liable for breach of warranty for impliedly warranting that

their herbicides and pesticides were of good and merchantable

quality.

      In    Count      III,        Plaintiff          alleged          that        the     Chemical

Defendants      were    strictly          liable          in    tort    for       manufacturing,

processing,      selling,         or      supplying             chemicals         that     were    in

defective condition and were unreasonably dangerous and unfit

for   their     intended         use    and   were         deleterious,           poisonous       and

highly harmful to Mr. White; and his exposure to their chemicals

caused his death from chronic myelogenous leukemia.




                                                 5
      In Count IV, Plaintiff alleged that Asplundh demonstrated a

deliberate       intention    to     expose     Mr.    White    to     unsafe       working

conditions       by:   1)    using    herbicides        and    other      chemicals     to

control unwanted vegetation without warning him of the hazards

posed by exposure to herbicides and other toxic chemicals; 2)

failing to provide him with adequate safety equipment; and, 3)

failing to conduct periodic physical examinations to monitor his

blood chemistry and health for signs of changes in his health as

the result of such exposure.

      In Count V, Plaintiff alleged that each of the Defendants

should be ordered to pay damages for causing Mr. White conscious

pain and suffering, and mental and emotional distress prior to

his death.

      In Count VI, Plaintiff alleged that Plaintiff is entitled

to wrongful death damages under West Virginia Code § 55-7-6.

                                            B

      On   August      22,   2005,    the     Dow     Defendants     filed      a    motion

pursuant to Rule 12(c) of the Federal Rules of Civil Procedure

for a more definite statement “identifying the particular Dow

product(s) that Plaintiff contends caused or contributed to the

injuries at issue in this lawsuit.”                   Plaintiff filed a response

to   the   Dow    Defendants’        motion     on    September      8,    2005.       She

asserted that the allegations in the complaint “provide[d] Dow

with sufficient notice under Rule 8(a) of the substance of her


                                            6
cause of action.”        The district court denied the Dow Defendants’

motion for a more definite statement on September 16, 2005.

                                            C

     The     Dow    Defendants       filed      their      answer    to    Plaintiff’s

complaint    on    September       26,    2005.      Apart    from    admitting       the

identity of the parties, the Dow Defendants denied each of the

substantive allegations set forth in paragraphs 1 to 40.                               In

response to paragraph 5 of the complaint, the Dow Defendants

alleged that they lack “knowledge or information sufficient to

form a belief as to the truth of the allegations that John W.

White used any products manufactured by The Dow Chemical Company

in his workplace, and therefore den[y] the same.”

                                            D

     On     November     7,      2005,    the    district     court       ordered    that

discovery should proceed in stages.                     Counsel were directed to

“submit to the court an agreed preservation order, which will

include     provisions      to     assure    preservation       and       retention    of

documents    and    electronic       records,       including   email,       which    are

relevant to this civil action.”                 The district court ordered that

“[f]rom January 3, 2006 through March 17, 2006, counsel shall

engage in informal discovery with respect to identifying the

substances    to    which     John   W.     White    was    exposed   prior     to    his

diagnosis.”        The district court also ordered that “depositions

of individuals with knowledge of the substances to which John W.


                                            7
White was exposed prior to his diagnosis” should be taken during

the week of March 13-17, 2006.

     At a scheduling conference conducted on May 15, 2006, it

was agreed that “[p]rior to the next status conference, counsel

for Plaintiff[] will interview John White’s former co-workers to

determine to which substances, if any, John White was exposed

during his employment.”

     A fourth status and scheduling conference was conducted on

June 12, 2006.        The district court ordered that “[p]rior to the

next status conference, counsel for Plaintiff[] will continue to

interview John White’s former co-workers to determine to which

substances,      if    any,     John   White      was   exposed   during     his

employment.”      The district court also ordered counsel for the

Dow Defendants, DuPont, Monsanto and Pharmacia to

     interview long-time employees with knowledge of the
     products marketed . . . to learn: -the identity of
     products marketed during the period that John White
     was employed by Asplundh; -those products which were
     typically mixed with diesel fuel in the application
     process.    Dow, DuPont, Monsanto and Pharmacia will
     produce information and labels for the products
     identified.

     On   June   24,    2006,    the   district    court   conducted   a   fifth

status conference.       The court ordered that

     [p]rior to the next status conference, counsel for
     Plaintiff[] will continue to interview John White’s
     former co-workers to determine to which substances, if
     any, John White was exposed during his employment.
     Within one week, Asplundh will indicate whether
     Plaintiff’s counsel may interview certain designated


                                        8
     management personnel outside the presence of counsel
     for Asplundh.     In addition, Asplundh will contact
     employees in the Vegetation/Chemical Department for
     information concerning that substances used to treat
     utility rights-of-way during the period 1974-1993.

     A sixth status conference was held August 21, 2006.                         The

district court issued the following order:

     1. On or before August 25, 2006, counsel for Asplundh
     will identify to counsel for Plaintiffs the names of
     additional   employees   in   the   Vegetation/Chemical
     Department during the period in question, if any.

     2. On or before September 21, 2006, counsel will take
     the depositions of four individuals who have executed
     affidavits, and such other persons as counsel agree,
     at times and places agreed by counsel for the parties.

     3. Plaintiffs have leave of court to file an amended
     complaint. The amended complaint will be filed on or
     about October 6, 2006.



                                        II

                                        A

     Plaintiff filed a first amended complaint on October 6,

2006.     She named as defendants, the Dow Chemical Company, Dow

Agrosciences     L.L.C.,     E.I   du   Pont       de     Nemours   and    Company,

Asplundh Tree Expert Co., and John Dow Herbicide and Chemical

Distributing     Corporation(s).             The    first    amended      complaint

alleged   that   the   Dow   Defendants       and       DuPont   were   liable   for

negligence, breach of warranty, and strict liability.                      It also

alleged that Asplundh was liable for deliberately intending to

expose its employees and Mr. White to unsafe working conditions.



                                        9
Plaintiff eliminated from the first amended complaint Arborchem

Products     Co.,   Monsanto    Company,      and   Pharmacia        as   party

defendants.      The court entered an order on November 6, 2006

dismissing Plaintiff’s claims against DuPont with prejudice at

Plaintiff’s request, and terminating the action against Monsanto

and Pharmacia.

     The Dow Defendants filed their answer to the first amended

complaint on October 27, 2006.           The Dow Defendants denied that

they were liable for negligence, breach of warranty, or strict

liability based on the condition of its products.

                                     B

     The Dow Defendants filed a motion for summary judgment on

January 17, 2007.      They alleged that Plaintiff “has been unable

to   present   admissible     evidence     identifying    any   of    the    Dow

Defendants’ products to which John White was allegedly exposed.”

They also argued that none of the individuals relied upon by

Plaintiff for the purpose of identifying the Dow Defendants’

products “have any personal knowledge of White ever applying any

herbicides     while   with    Asplundh.       Further,    none      of     these

individuals can or do testify that they ever saw White using or

being exposed to any of the Dow Defendants’ products on any

particular date or at any particular worksite.”




                                    10
                                          C

      Plaintiff filed a response to the Dow Defendants’ motion

for summary judgment on February 5, 2007.                        She noted that as a

result of the parties named on the first amended complaint, and

orders of dismissal, the only remaining defendants were Asplundh

and the Dow Defendants.

      To support her opposition to the Dow Defendants’ motion for

summary    judgment,      Plaintiff       presented          the     declarations      of

Asplundh      employees   who    worked       for    that    company      in   the   same

positions held by Mr. White.

      Charles McKinney declared in an affidavit that he worked

with Mr. White from around 1976 to 1979.                         He and Mr. White had

similar duties including the spraying of foliage with various

chemicals.       During   that    time    period,          the    Dow   chemicals    were

mixed with fuel oil or diesel fuel.                  This mixture was sprayed on

foliage.       During spring and summer, Asplundh employees would

spray every day.          While spraying, or walking through sprayed

foliage, diesel fuel and chemicals would get on the worker’s

clothing and body.

      In his subsequent deposition testimony, reported on October

31,   2006,    Mr.   McKinney    testified          that    he    never   observed    Mr.

White while he was working.          Mr. McKinney also testified that he

did not recall any chemical being mixed with diesel fuel.




                                          11
     Walter Lee Matthews declared in an affidavit that he worked

in the vegetation department of Asplundh.                 His duties were to

procure and distribute products in the field.                  During the 1970s

and 1980s, Dow products were used by the workers in the field.

When Mr. Matthews entered the chemical department of Asplundh in

1970, 70% of the herbicides were mixed with oil and 30% were

mixed with water.     Later, the ratio changed; 98% were mixed with

water and 2% were mixed with oil.             He never saw Mr. White in the

field.     Mr. Matthews also never saw anyone spray the chemical

products that he provided Asplundh employees.

     Michael E. Kline declared in an affidavit that he worked at

Asplundh beginning in 1980 through 1983.                  He again worked at

Asplundh from 1989 to 2001.              He used Dow products mixed with

diesel   fuel   during    the    time    period    of   1980   to   1983.     The

chemical and diesel fuel mixture would get on a worker’s body

when it was sprayed, or when a person walked through the foliage

after it was sprayed.           Mr. Kline also testified that he never

worked on a crew with Mr. White, nor did he ever see him apply

herbicides.

     Willis Cooley, Jr. testified that Mr. White was his general

foreman at Asplundh during the summer of 1997 and from April to

August   of   1998.      Mr.    Cooley    used    Dow   products    in   spraying

foliage.      When Mr. White would visit work sites the spraying




                                         12
would stop while he spoke to the crew, but residual spray would

get on him.        Mr. Cooley never saw Mr. White spray herbicides.

       James W. Orr stated in his affidavit that since 2000, he

has    served     as    the   general   manager      of    the    Technical       Services

Division of Asplundh.            In that capacity he provides information

relating     to    the    biology   and    botany     of    trees     and   vegetation.

Since 1986, Asplundh has not used diesel fuel for treatments

calling for an oil dilutant.                Instead, it uses Arborchem Basal

Oil – a mixture that does not include diesel fuel.

                                            D

       The district court denied the Dow Defendants’ January 17,

2007    motion     for    a   summary     judgment     on     March    9,    2007.      It

concluded that the motion was premature because the completion

of discovery was not scheduled until June 19, 2007, and the

deadline for the filing of a motion for summary judgment and

other dispositive motions was set for August 23, 2007.



                                          III

                                            A

       The   Dow       Defendants   filed       a   renewed      motion     for    summary

judgment on October 5, 2007.                They alleged that “Plaintiff has

been unable to present admissible evidence identifying any Dow

product to which John White was exposed.”                        The Dow Defendants

noted that the district court had declined to address the merits


                                           13
of their initial motion for summary judgment because discovery

was   still   ongoing.      They    asserted      that     “[d]iscovery   is   now

closed, yet the factual record remains the same.”

                                        B

        On October 19, 2007, Mrs. White filed an opposition to the

Dow   Defendants’   renewed    motion       for   a   summary   judgment.      She

submitted her own affidavit that was sworn to on October 18,

2007.     In her affidavit, Mrs. White alleged that she was married

to Mr. White in 1976.         At that time, Mr. White was employed by

Asplundh.     She declared that up until the early 1990s, Mr. White

“would come home at least three times a week, reeking of diesel

fuel.”     Mr. White’s work clothes were placed in garbage bags and

laundered separately.       Because she was unable to get the diesel

fuel smell and stains out of his clothing, she would frequently

discard them after several uses.            Mr. White also complained that

his skin was burning from being exposed to diesel fuel.                        In

addition, Mr. White’s work vehicle smelled strongly of diesel

fuel.

        In her response to the Dow Defendants’ motion, she argued

that a genuine issue of material fact exists as to whether or

not John White was exposed to products manufactured by the Dow

Defendants because “[t]he Affidavits of the Asplundh employees

indicate    that   Dow   products   were     used     on   projects   within   the

relevant time period and the relevant geographical locations.”


                                      14
                                               C

      The       district    court    granted         the      Dow    Defendants’        renewed

motion for summary judgment in an order issued on November 29,

2007.       The     district       court    held        that,       under    West   Virginia

substantive law, which it was required to apply in exercising

its   diversity         jurisdiction       over     Plaintiff’s        state      law   claims

pursuant to Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938),

Plaintiff        failed    to    prove   the       probability        of    the   element   of

causation. 1        In explaining its conclusion, the district court

stated: “In this case there is simply no evidence that Mr. White

was ever exposed to Dow products.                    All that is known is that Mr.

White     may    have     been   exposed     to     a   variety       of    herbicides      and

pesticides while in Asplundh’s employ.” 2

        Plaintiff filed a timely notice of appeal on December 27,

2007.       We    have    jurisdiction       over       the    district      court’s     final

judgment pursuant to 28 U.S.C. § 1291.




      1
      In its order, the district court explained that “both
Asplundh and Dow have only been able to produce documents that
go back as far as 1999 and 1997, respectively, due to
destruction of documents that would yield this information.”
      2
      Asplundh filed a motion for summary judgment on October 5,
2007. It was denied as moot on October 19, 2007. Plaintiff and
Asplundh filed a petition to approve a settlement agreement on
January 25, 2008. It was approved on April 24, 2008.




                                             15
                                           IV

                                           A

      Plaintiff      contends      that     the     district       court      erred     in

determining that the evidence presented in opposition to the Dow

Defendants’ motion for a summary judgment was insufficient to

demonstrate     that     Mr.    White      was     exposed      to     Dow    products.

Plaintiff     argues    that    the    district         court   did    not    view     the

circumstantial evidence presented in opposition to the motion

for summary judgment in the light most favorable to the non-

moving party.

      We review an appeal from an order granting summary judgment

de novo.      Hill v. Lockheed Martin Logistics Mgmt., Inc., 354

F.3d 277, 283 (4th Cir. 2004).                  We must review the evidence in

the   light   most     favorable      to   the    party    opposing         the   motion.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986).         The party opposing summary judgment must produce

“evidence     that    would    support     a     jury    verdict.”          Anderson   v.

Liberty Lobby, 477 U.S. 242, 256 (1986).                   “The mere existence of

a scintilla of evidence in support of plaintiff’s position will

be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.”                Id. at 252.

                                           B

      Under West Virginia law, a claim for negligence, breach of

warranty,     and    strict    liability        requires    that      the    element   of


                                           16
causation be satisfied.               Tolley v. Carboline Co., 617 S.E.2d

508, 511-12 (W. Va. 2005) (“Tolley II”). 3                  Proximate cause is the

“cause which in actual sequence, unbroken by any independent

cause, produces the event and without which the event would not

have occurred.”         Johnson v. Mays, 447 S.E.2d 563, 568 (W. Va.

1994).     In toxic exposure cases, providing adequate evidence of

exposure    is   required      to     prove    the    element   of     causation        and

survive    a   motion    for    summary       judgment.       See    Tolley       v.    ACF

Indus.,    575   S.E.2d     158,      168-69    (W.   Va.    2002)     (“Tolley        I”);

Tolley II, 617 S.E.2d at 512-13.

     In    determining      whether      sufficient         evidence      of    exposure

exists, a plaintiff must present evidence that shows more than a

“mere possibility” of exposure.                Tolley I, 575 S.E.2d at 168-69.

“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.”         Sakaria      v.        Transworld


     3
      See Aikens v. Debow, 541 S.E.2d 576, 581 (W. Va. 2000)
(discussing requirement of proximate cause in negligence cause
of action); City Nat’l Bank of Charleston v. Wells, 384 S.E.2d
374, 382 (W. Va. 1989) (discussing requirement of proximate
cause in breach of warranty cause of action); Illosky v.
Michelin Tire Corp., 307 S.E.2d 603, 611 (W. Va. 1983)
(discussing the requirement of proximate cause in failure to
warn cause of action); Morningstar v. Black & Decker Mfg. Co.,
253 S.E.2d 666, 680 (W. Va. 1979) (discussing requirement of
proximate cause in strict liability cause of action).




                                          17
Airlines, 8 F.3d 164, 172-73 (4th Cir. 1993).                          To meet this

evidentiary        burden,   a   plaintiff     must    demonstrate      the   amount,

duration, intensity, and frequency of exposure.                     See Lohrmann v.

Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986)

(“To   support      a   reasonable    inference       of    substantial      causation

from circumstantial evidence, there must be evidence of exposure

to a specific product on a regular basis over some extended

period   of    time     in   proximity   to    where       the   plaintiff    actually

worked.”); Yeater v. Allied Chem. Co., 755 F. Supp. 1330, 1338

(N.D. W. Va. 1991) (holding that the “intensity of the exposure

is a critical factor” when determining whether an employee was

exposed); Tolley I, 575 S.E.2d at 169 (“Critical to establishing

exposure      to    a   toxic    chemical     is   knowledge      of   the    dose   or

exposure amount and the duration of the exposure.”).

       In Tolley I, the plaintiff sued his employer and a number

of paint manufacturers alleging that his exposure to paint fumes

caused his breathing ailments. 575 S.E.2d at 160-61; Tolley II,

617 S.E.2d at 510-11.            The trial court granted summary judgment

in favor of the employer.            The Supreme Court of Appeals of West

Virginia affirmed summary judgment for the employer and later,

in Tolley II, affirmed summary judgment for the manufacturers

under the theory of collateral estoppel.                     Tolley I, 575 S.E.2d

at 169; Tolley II, 617 S.E.2d at 517.                       The Supreme Court of

Appeals of West Virginia held in each of the Tolley appeals that


                                         18
the plaintiff failed to meet the proximate cause requirement

because he was exposed “to at least three different products

that can cause his condition.” Tolley I, 575 S.E.2d at 168;

Tolley II, 617 S.E.2d at 512.

        Plaintiff     contends       that     Roehling      v.     National     Gypsum

Company, 786 F.2d 1225 (4th Cir. 1986), supports her contention

that     she   presented         sufficient      evidence    to    defeat     the   Dow

Defendants’ motion for summary judgment.                    Plaintiff argues that

in   Roehling,      this    circuit    held      that   direct    evidence    was   not

required to prove that a plaintiff was exposed to an injurious

substance.

        In Roehling, the plaintiff’s co-workers declared that they

and the plaintiff “worked in the same areas at the same time

adjacent to one another.”              Id. at 1227.          They also testified

that they were exposed to the defendants’ asbestos-containing

products.       Id.     This court held in Roehling that although the

plaintiff      “could      not   himself    remember     what     asbestos    products

were used in this work area, the witnesses, who handled the

materials, have distinct memories: Owens-Illinois and National

Gypsum products.           Such evidence raises a question of fact as to

whether Roehling was exposed to defendants’ products.”                         Id. at

1228.

       Under Roehling, a plaintiff “need only establish that [he

or she] was in the same vicinity as witnesses who can identify


                                            19
the products causing the asbestos dust that all the people in

the area, not just the product handlers, inhaled.”                       Id.

       Roehling    is    readily     distinguishable             from   the     question

presented in this appeal.            This court held in Roehling that the

circumstantial evidence presented by plaintiff was sufficient to

withstand a motion for summary judgment because the plaintiff’s

co-workers     identified      the   product       he    was   exposed    to    when    he

worked with them in the same area and at the same time.                                Id.

Unlike the evidence in Roehling, there is no evidence, direct or

circumstantial,         that   Mr.    White        was     exposed       to    the     Dow

Defendants’ herbicides.

       In her affidavit, Plaintiff alleged that Mr. White smelled

like fuel when he returned from work.                    She did not identify the

product that caused the odor as a Dow herbicide.                              The record

shows that Asplundh employees also mixed Krenite, manufactured

by DuPont, with diesel fuel.           Indeed, Plaintiff alleged that Mr.

White reeked of diesel fuel until the early 1990s – well after

1986 when Asplundh stopped mixing herbicides with diesel fuel.

       The district court allowed discovery to take place for two

years    to    allow    Plaintiff     an        opportunity       to    develop      facts

relating to product identification.                     Despite having had ample

time    for    discovery,      Plaintiff        was     unable     to    identify      the

specific      herbicides    Mr.   White     was       actually    exposed      to    while

working for Asplundh.          In the absence of any evidence that Mr.


                                           20
White was exposed to Dow herbicides, the element of causation

was   not   demonstrated   in   Plaintiff’s   opposition    to   the   Dow

Defendants’ motion for summary judgment.



                                    V

      Because   we   conclude     that   Plaintiff’s       circumstantial

evidence was insufficient to demonstrate that there is a real

probability that Mr. White was exposed to a Dow product, we must

affirm.

                                                                 AFFIRMED




                                   21
