Published: September 12, 2017
Defendant CertainTeed's Motion for Summary Judgment
Honorable Calvin L. Scott, Jr. Judge
Thelma Lempert ("Plaintiff"), claims cannot survive
summary judgment. Plaintiff claims that her husband, Harold
Lempert ("Mr. Lempert") contracted asbestos related
lung cancer from exposure to Defendant CertainTeed
Corporation's ("Defendant") asbestos-containing
plaster, joint compound, and drywall products. Mr. Lempert
installed plaster, drywall, and joint compound from 1952
until 2000. Mr. Lempert moved bags of plastering material and
cleaned up his father's garage starting in 1944, and he
continued to work on weekends until 1952. In 1952 Mr. Lempert
started apprentice school. At this time he began using
plaster products. Mr. Lempert went into the United States
Army, and he was discharged in 1957. Once he was discharged,
Mr. Lempert resumed his apprenticeship. Mr. Lempert stated
that he applied Bestwall plaster, CertainTeed plaster,
CertainTeed joint compound, Bestwall joint compound, and
first argues that Mr. Lempert did not recall using
CertainTeed joint compound until he completed his
apprenticeship in 1958. Defendant presented evidence that
CertainTeed transferred all of its gypsum business to
Bestwall Gypsum company in 1956, and the only gypsum product
it manufactured with asbestos was drywall joint compound,
acoustical plaster, and patching plaster. Defendant claims
that CertainTeed did not manufacture or supply any additional
joint compound, plaster, or drywall materials after this
transfer to Bestwall. Defendant also states that it sold only
asbestos-free wall plaster until June 30, 1956. Additionally,
Defendant states that it manufactured drywall, or "wall
board" under the name Bestwall until June 30, 1956, and
Defendant never marketed or sold any drywall under the
"CertainTeed" name. Defendant asserted that only
one of the two joint compounds Defendant sold until June 30,
1956 contained asbestos as an ingredient.
maintains that it is entitled to summary judgment because
Plaintiff's claims against Defendant fail. First,
Defendant argues that because it exited the gypsum
manufacturing business in 1956, and Mr. Lempert's
testimony shows that he did not work with CertainTeed
products until 1958, Mr. Lempert could not have worked with a
CertainTeed product. Plaintiff argues that Mr. Lempert, as
the only product identification witness, sufficiently
identified working with Defendant's asbestos products.
First, Plaintiff states that Mr. Lampert testified that he
used CertainTeed asbestos containing wall plaster prior to
1956. However, Plaintiff's assertion is not supported by
the record Plaintiff provided, nor was the portion of the
deposition Plaintiff referred to attached to the Response
Motion.Plaintiff also argues that Mr. Lempert
identified CertainTeed Gypsum wallboards. Again, this
proposition was not supported by the record Plaintiff
provided, nor was portion of the deposition Plaintiff cited
to attached to the Response. Defendant points to numerous
excerpts of Mr. Lempert's testimony. Mr. Lempert stated
that he worked with CertainTeed wall boards after he
completed his apprenticeship. Mr. Lempert identified working
with Defendant CertainTeed's and Bestwall joint compound.
He started using this joint compound after he finished his
apprenticeship. Plaintiff argues that a rational juror could
determine that Mr. Lempert worked with Defendant's
wallboard and plaster products which exposed him to asbestos.
claims against Defendant fail because Plaintiff is unable to
show that Mr. Lempert was exposed to asbestos from
Defendant's products beyond speculation. Defendant
offered evidence demonstrating that "the only
gypsum-related products that are known by CertainTeed to have
been marketed by it and have contained asbestos are drywall
joint compounds, Kalite acoustical plaster, and patching
plaster." Defendant presented evidence that its drywall
joint compound was discontinued on June 30, 1956, and Mr.
Lempert recalled using joint compound after his
apprenticeship ended, which was in 1958. Thus, a rational
juror could not find that Mr. Lempert was exposed to asbestos
from Defendant's drywall joint compound. Similarly,
Defendant carried acoustical plaster, under the tradename
Kalite, and patching plaster which were both discontinued on
June 30, 1956. However, the dry powdered wall plasters sold
in bags by CertainTeed did not contain asbestos. CertainTeed
manufactured plasters with asbestos and without asbestos.
Plaintiff did not offer evidence, beyond Mr. Lempert's
assumption, that the plaster Mr. Lempert used contained
asbestos. Thus, Plaintiff cannot show that Mr. Lempert was
exposed to an asbestos product manufactured by Defendant.
aforementioned reasons, Defendant CertainTeed's Motion
for Summary Judgment is GRANTED.
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. 1986); In re
Asbestos Litigation (Helm), 2012 WL 3264925 (Del. Aug.
 See Plaintiff's footnotes 22
through 25 referring to "Exhibit B."
 See Plaintiff's footnotes 22
through 25 referring to "Exhibit B." It does not
appear that Mr. Lempert mentions Defendant CertainTeed as a
product in any portion of the testimony that Plaintiff