Defendant Bird Inc.'s Motion for Summary Judgment.
L. Scott, Jr. Judge.
cannot satisfy the summary judgment criteria on the issues of
product identification and causation.
Henry Stowers, and his wife Laura Stowers claim that Mr.
Stowers was exposed to asbestos from Defendant's products
which caused his lung cancer. Plaintiffs rely on Mr. Stowers
as their sole product identification witness. Mr. Stowers
testified that after leaving high school he worked at Gulf
gas station, and testified that while at Gulf he did about
three or four brake jobs per week. He testified that he
started working at McAlester Naval Ammunition Plant in March
of 1966 as a sheet metal worker. Mr. Stowers testified that
the piping was covered in asbestos insulation, and he rebuilt
and replaced metal parts in the plant including tar kettles,
boilers, and draw piping. Mr. Stowers left the ammunition
plant in January 1976 and returned in 1987. He testified that
between 1985 and 1987 he was a self-employed roofer,
carpenter, and built cabinets. Mr. Stowers stated that he
removed old shingles on roofs and replaced them with new
ones. He stated that the new shingles were made by
Owens-Corning and Heritage, but he was unaware of the
manufacturer of the roof felt. He also did not know the
manufacturer of the old roof materials he removed. He stated
that he used Bird roofing cement around the openings of pipes
that came through the roof. He applied the cement with a
trowel, and cleaned the trowel with a buffing wheel attached
to a grinder which created black dust that he breathed in.
contends that Plaintiffs cannot show the roofing cement
released asbestos fibers under Oklahoma law. Plaintiffs argue
that there is a genuine issue of material fact that Mr.
Stowers' lung cause is a result of his exposure to
Defendant's roof cement. Plaintiffs presented evidence
from Interrogatories that Bird Inc. admittedly made and sold
asbestos containing roofing products. At Oral Arguments, an
issue came up regarding an expert report. In Defendant's
papers, Defendant argued that Plaintiffs failed to submit an
expert report from an industrial hygienist or other qualified
professional linking Mr. Stowers' injury to
Defendant's roof cement. Exhibit B of Plaintiffs'
response Motion is an expert report from Dr. Sanford M.
Ratner stating that "Mr. Stowers was exposed to asbestos
from 1966-1976 as sheet metal mechanic and while performing
brake and carpentry work." In his opinion, "to a
reasonable degree of medical certainty, Mr. Stowers'
primary lung cancer arose as a result of his exposure to
asbestos." Nothing in the report links Mr. Stowers'
injury to Bird roof cement. At oral argument, Plaintiffs
presented an Expert report dated January 30, 2017, e-filed on
February 9, 2017. The expert report from Jonathan L. Gelfand,
M.D. states that Mr. Stowers was exposed to asbestos
containing roofing cement manufactured by Bird. In Dr.
Gelfand's opinion, he stated but for Mr. Stowers'
"accumulated burden of exposure to asbestos dust from
each asbestos-containing product" he would "not
have metastatic adenocarcinoma of the lung with a poor
prognosis for survival."
Oklahoma law, plaintiffs in asbestos-related injury cases
"must prove that the product was the cause of the
injury; the mere possibility that it might have caused the
injury is not enough." A plaintiff must establish that
there was a "significant probability" that
a defendant's products caused their
injuries. In Dillon v. Fibreboard Corp.,
Tenth Circuit acknowledged that Oklahoma's
"significant probability" standard was
"strikingly similar" to what is now readily known
as the Lohrmann standard,  and endorsed the district
court's application of the Oklahoma standard while
approving the "well-formulated" analysis adopted in
Lohrmann. Plaintiffs rely on Interrogatories
attached to their response Motion as Exhibit A. Defendant
Bird's answer states:
Bird purchased a great deal of its asbestos-containing
cements and coatings from other companies to be relabeled as
Bird. However, it did manufacture some of its own. Most of
the cements and coatings were believed to contain asbestos.
It is believed that chrysotile asbestos was used in these
products, with the exception of one type that would have
utilized Finnish anthophyllite fiber. . . The asbestos fiber
was fully encapsulated into asphalt. The products would also
have been sold in different formulations under varying trade
names for specific varying purposes.
failed to demonstrate beyond speculation that there is a
significant probability, under Oklahoma law, that
Defendant's product caused Mr. Stowers' injuries.
Beyond speculation, the record lacks evidence supporting
Plaintiffs' contention that Mr. Stowers worked with
asbestos roof cement that released asbestos fibers. Even if
this Court accepts Plaintiffs' expert report dated
January 30, under Oklahoma law, the mere possibility that
Defendant's product caused Mr. Stowers' injury is not
enough to survive summary judgment. The only evidence Plaintiffs
offered demonstrating that Mr. Stowers worked with asbestos
roof cement was from Defendant's answer to
Interrogatories stated above. The answer states that Bird
manufactured asbestos containing roof cement; however, there
is no evidence in the record linking Mr. Stowers to
Defendant's asbestos containing roof cement beyond
Defendant Bird Inc.'s Motion for Summary Judgment is
IT IS SO ORDERED.
 Super. Ct. Civ. R. 56; Smith v.
Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405
A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In
re Asbestos ...