Opinion
C.A. No. 06C-10-108 ASB.
Submitted: May 14, 2008.
Decided: May 15, 2008.
Upon Defendant Union Carbide's Motion for Summary Judgment On The Issue Of Whether Union Carbide Was The Exclusive Supplier Of Asbestos Fiber For Products Identified By Plaintiff.
DENIED IN PART GRANTED IN PART.
ORDER
The substantive law of the State of Ohio applies in this case. Ohio Revised Code section 2307.96 identifies specific factors to be considered by the trier of fact when determinating causation. Section 2307.96 requires a plaintiff to prove that the conduct of a particular defendant was a substantial factor in causing the injury or loss on which the cause of action is based. If a plaintiff cannot meet this burden, summary judgment is appropriate. In determining whether exposure to a particular defendant's product was a substantial factor in causing plaintiff's injury or loss, the trier of fact should consider, without limitation, all of the following:
(1) the manner in which the plaintiff was exposed to the defendant's asbestos;
(2) the proximity of the defendant's asbestos to the plaintiff when the exposure occurred;
(3) the frequency and length of the plaintiff's exposure to the defendant's asbestos; and
(4) any factors that mitigated or enhanced the plaintiff's exposure to asbestos.
Plaintiff has alleged exposure to asbestos-containing products manufactured by defendants Conwed, Georgia-Pacific and Kaiser Gypsum. Defendant Conwed has been dismissed from this action. Plaintiff claims that during the relevant time period, defendant Union Carbide was the sole supplier of asbestos fiber to Georgia-Pacific and Kaiser Gypsum. Union Carbide argues that because it was among the multiple suppliers of asbestos fibers, plaintiff has failed to establish a prima facie case that Union Carbide's products were a substantial cause of plaintiff's injury.
Following oral argument, the parties submitted additional record citations on this issue.
Georgia-Pacific
Plaintiff provided deposition citations indicating that Union Carbide's Calidria SG-210 asbestos fiber was the only asbestos used in Georgia-Pacific Ready-Mix joint compound manufactured in Georgia-Pacific's Akron, New York and Ohio plants from 1970 to 1977. According to a Georgia-Pacific representative, the Ohio market (where plaintiff worked) was serviced by these Georgia-Pacific plants. Additionally, all Georgia-Pacific Ready-Mix contained asbestos during the time of plaintiff's alleged exposure.
Union Carbide identified discovery responses stating that Georgia-Pacific manufactured an asbestos-free ready-mix joint compound beginning in 1974. Additionally, certain Georgia-Pacific ready-mix formulas suggest that Union Carbide was not the exclusive supplier of asbestos to Georgia-Pacific.
Summary Judgment Standard
This Court will grant summary judgment only when no material issues of fact exist. The moving party bears the burden of establishing the non-existence of material issues of fact. Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact. Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, then the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial. If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, summary judgment must be granted. A court deciding a summary judgment motion must identify disputed factual issues whose resolution is necessary to decide the case, but the court must not decide those issues. The Court must evaluate the facts in the light most favorable to the non-moving party. Summary judgment will not be granted under circumstances where the record reasonably indicates that a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Id. at 681.
Super. Ct. Civ. R. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991), cert. denied, 504 U.S. 912 (1992); Celotex Corp. v. Catrett, supra.
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99 (Del. 1992).
Id.
Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962).
Viewing the facts in the light most favorable to plaintiff, the Court finds that a genuine issue of material fact exists as to whether Union Carbide was the sole supplier of asbestos fiber to Union Carbide during the relevant time period.
Kaiser Gypsum
Plaintiff identified pre-mix joint compound formulas reflecting the exclusive use of Union Carbide's Calidria SG-120 asbestos in1974.
Defendant submitted deposition excerpts supporting its contention that Union Carbide was only a minority supplier of asbestos to Kaiser Gypsum. Further, Kaiser Gypsum produced an asbestos-free ready-mix joint compound in 1975.
Stigliano v. Westinghouse
Del. Super., C.A. No. 05C-06-263 ASB, Slights, J. (Oct. 18, 2006)(Order).
In Stigliano v. Westinghouse, this Court ruled:
When the record reveals that a defendant manufactured both asbestos-containing and non asbestos-containing versions of a product during the time period of alleged exposure, in the absence of evidence directly or circumstantially linking the plaintiff to the asbestos-containing product, the Court cannot draw the inference of exposure and summary judgment on product nexus must be granted.
See Lipsomb v. Champlain Cable Corp., 1988 WL 102966 (Del.Super.).
The Court finds that plaintiff has failed to establish a prima facie case that Union Carbide was the exclusive supplier of asbestos to Kaiser Gypsum throughout the relevant time period.
CONCLUSION
THEREFORE, Defendant Union Carbide's Motion for Summary Judgment on the issue of whether Union Carbide was the exclusive supplier of asbestos fiber to Georgia-Pacific is hereby DENIED.
Defendant Union Carbide's Motion for Summary Judgment on the issue of whether Union Carbide was the exclusive supplier of asbestos fiber to Kaiser Gypsum is hereby GRANTED.
IT IS SO ORDERED.