JACK E. TROUSDALE, and SANDRA TROUSDALE, his wife, Plaintiffs,
CERTAINTEED CORPORATION et al, Defendants.
Defendant Certain Teed's Motion for Summary Judgment
GRANTED IN PART; DENIED IN PART.
Honorable Calvin L. Scott, Jr., Judge
Jack E. Trousdale, and his wife Sandra Trousdale
(collectively "Plaintiffs") satisfied the summary
filed an action against Defendant CertainTeed Corporation
("Defendant") alleging that Plaintiff Jack
Trousdale ("Mr. Trousdale") was exposed to asbestos
from Defendant's products. Plaintiffs contend that Mr.
Trousdale purchased a flat-bed tractor trailer in 1972 to
work as an independent truck driver, and as part of his job
Mr. Trousdale shipped CertainTeed pipe. Plaintiffs claim that
Mr. Trousdale drove to Defendant's Ambler, Pennsylvania
facility and Defendant's personnel loaded asbestos-cement
pipe onto the truck flatbed, which took approximately half an
hour. Mr. Trousdale strapped the pipes down and put tarp over
the pipes. Plaintiffs claim the pipes were dusty and
"dust rose into the air as Mr. Trousdale removed placed,
manipulated, and tightened the straps and tarps. At delivery
Mr. Trousdale removed the straps and tarps, again raising
dust, and folded the tarps." Plaintiffs claim that Mr.
Trousdale repeated this process about fifty times, and the
first twenty to thirty occurred between 1973 and 1977.
Plaintiffs presented evidence that Defendant sold
asbestos-cement pipe from Ambler, Pennsylvania from 1962
first argument is that Mr. Trousdale's description of the
pipes is inconsistent with CertainTeed asbestos cement pipe.
Defendant contends that CertainTeed shipped pipe with
couplings attached in order to join the pipes in the field,
and Mr. Trousdale did not identify couplings on the pipes.
Additionally, Defendant argues that CertainTeed asbestos-pipe
did not have the word "asbestos" on the pipe, as
Mr. Trousdale described in his deposition. At the onset, the
Court notes that Plaintiffs met their product identification
burden. Defendant's argument regarding the alleged
discrepancies in Mr. Trousdale's description of
Defendant's asbestos pipes, and Defendant's
description of the pipes, are issues of fact appropriate for
the jury. Next, Defendant argues that Plaintiffs have not met
their burden under Indiana law which requires that they prove
Mr. Trousdale was exposed to Defendant's product and that
product "produced a significant amount of asbestos dust
and that the plaintiff might have inhaled the
dust." Defendant contends that "there is no
evidence that the manner of contact described by Mr.
Trousdale would have produced respirable asbestos much less
in amounts as required under Indiana law." Defendant
relies on an affidavit of Kyle Dotson to support this
proposition. Mr. Dotson stated that a study performed by the
Equitable Environmental Health in 1977 focused on asbestos
levels during certain work practices with asbestos cement
pipe. Mr. Dotson avers that the test showed that unloading
and laying of pipe detected levels of asbestos ranging from
non-detectable to a high of 0.03 f/cc (peak samples), which
is one-tenth of the current OSHA Permissible Exposure Limit
of 0.1 f/cc.
avoid summary judgment under Indiana law, the plaintiff
"must produce evidence sufficient to support an
inference that he inhaled asbestos dust from the
defendant's product." "This inference can only be
made if it is shown that the product, as it was used during
the plaintiffs tenure at the job site, could possibly have
produced a significant amount of asbestos dust and that the
plaintiff might have inhaled the dust." "However, an
inference is not reasonable when it rests on no more than
speculation or conjecture." Plaintiffs demonstrated that
Defendant produced asbestos cement pipe during the time frame
Mr. Trousdale transported pipes on his flat-bed truck.
Additionally, Mr. Trousdale testified that the pipes were
dusty and the process created dust. Thus, Plaintiffs
demonstrated that genuine disputes of material facts exist,
and a reasonable jury could determine that his work produced
a significant amount of asbestos dust pursuant to
Indiana's causation standard. However, summary judgment
for the claims against CertainTeed post 1982 are hereby
GRANTED. Mr. Trousdale testified that he did not haul
CertainTeed pipe out of another plant except for the one in
Pennsylvania, and Defendant presented evidence that it
stopped manufacturing asbestos cement pipe at the Ambler,
Pennsylvania plant in 1982. Accordingly, Defendant's
Motion for Summary Judgment is hereby DENIED IN PART and
GRANTED IN PART.
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 Litigation (Helm), 2012 WL 3264925 (Del.
Aug. 13, 2012).
Defendant cites to Fulk, 755
N.E.2d 1198, 1203 (Ind.Ct.App. 2001).
Parks v. A.P. Green Indust.,
Inc., 754 N.E.2d 1052, 1056 (Ind.Ct.App. 2001) (quoting
Black v. ACandS, 752 N.E.2d 148, 155 (Ind.Ct.App.
2001)), abrogated on other grounds; see also Asbestos
Corp. Ltd. V. Akaiwa, 827 N.E.2d 1095, 1097 (Ind.Ct.App.
Fulk v. Allied Signal, Inc.,
755 N.E.2d 1198, 1203 (Ind.Ct.App. 2001) (citing Peerman
v. Georgia-Pacific Corp.,35 F.3d 284, 287 (7th ...