CONSTANCE L. AVENI, individually and as Executor of the Estate of VINCENZO J. Aveni, deceased, Plaintiff,
UNION CARBIDE CORP., et al., Defendants.
Defendant Union Carbide Corporation's Motion for Summary
HONORABLE CALVIN L. SCOTT, JR. JUDGE.
Constance L. Aveni, individually and as Personal
Representative of the Estate of Vincenzo J. Aveni, deceased,
("Plaintiff") cannot satisfy the summary judgment
criteria on the issues of product
identification. Plaintiff alleges that Vincenzo Aveni
("Mr. Aveni") developed lung cancer from using
Defendant Union Carbide Corporation's ("Union
Carbide") products. Plaintiff alleges that Mr. Aveni was
exposed to Union Carbide's products while he worked in
the construction industry performing personal home
construction. Mr. Aveni's son, Joseph Aveni, is the only
product identification witness in this action. Union Carbide
alleges that Plaintiff has not demonstrated that it is
responsible for Mr. Aveni's injuries. In its Motion,
Union Carbide states that from 1963 through 1985 it mined and
milled a "unique short-fiber, remolite-free, chrysotile
asbestos fiber known as Calidria." Subsequently, Union
Carbide sold Calidria to manufacturers who used it during
certain times and at certain locations while manufacturing
their own product. Union Carbide sold Calidria to
Georgia-Pacific's Chicago, Illinois plant from 1970 to
April 1977. Union Carbide also sold Calidria to USG from 1971
to 1975, and to the manufacturer of Gold Bond joint compound,
National Gypsum, from 1967 to 1975. According to Union
Carbide, it was not the sole supplier to these companies.
Union Carbide states that there are two potential areas of
exposure that allegedly link Union Carbide to Mr. Aveni's
injuries. First, Joseph Aveni testified that his father used
Georgie-Pacific, USG, and Gold Bond joint compounds while at
Jance Construction from 1979 to 1983. Second, Mr. Aveni used
Georgia-Pacific premised joint compound when he performed
personal home construction projects between 1977 and 1981.
Carbide avers that it was impossible for Mr. Aveni to have
been exposed to asbestos from Union Carbide's Calidria
because the product allegedly used by Mr. Aveni, a
Georgia-Pacific joint compound, was manufactured after April
1977. Union Carbide argues that Georgia-Pacific compound
became entirely asbestos-free in 1977, which was before Mr.
Aveni allegedly used the compound in his home. Additionally,
before 1977, Georgia-Pacific manufactured both asbestos and
non-asbestos containing joint compounds, and USG and Gold
Bond joint compounds manufactured after 1975 did not contain
Calidria. Finally, Union Carbide alleges that Plaintiff has
not proven that Calidria, as opposed to an asbestos product
from another supplier, was present in the joint compound Mr.
Aveni used. Contrary to Union Carbide's position in its
Motion, Plaintiff contends that there are genuine issues of
fact. Plaintiff argues that Union Carbide was an exclusive
supplier of asbestos to Georgia-Pacific's Chicago plant
until May 1977, and during this time frame Mr. Aveni used
Georgia-Pacific compound. Joseph Aveni testified that he was
present while his father remodeled their family home between
1977 and 1981. He testified that he recalled his father using
a product labeled "Georgia-Pacific" and it came in
plastic buckets. Joseph Aveni testified that this was around
1977. Plaintiff provided testimony from Corporate
Representative Howard Schutte of Georgia-Pacific
demonstrating that Georgia-Pacific sold asbestos containing
mix for up to 180 days after it removed asbestos from its
product line in 1977.
Plaintiff did not oppose Union Carbide's argument
regarding USG and Gold Bond compound, thus its motion is
granted as to those alleged exposures. The argument the Court
takes issue with is that this is not a Georgia-Pacific case.
Rather, it is a case against Union Carbide because they were
one supplier of asbestos to Georgia-Pacific. Union
Carbide cites to numerous cases, including Campbell v.
A.W. Chesterton, an Ohio Court of Common Pleas case, for
the proposition that Union Carbide did not owe Mr. Aveni a
duty to warn. However, without analyzing the duty to warn
argument under Ohio substantive law, the Court finds that
Plaintiff's case fails for lack of product
identification. First, the only link between the Plaintiff
and an asbestos product related to Union Carbide is Calidria
that Union Carbide sold to Georgia-Pacific. The issue with
Plaintiff's case is that there is no evidence that Mr.
Aveni worked with an asbestos containing Georgia-Pacific
product. Plaintiff contends that Union Carbide was the sole
provider of Calidria to the Chicago, Illinois Georgia-Pacific
plant, yet there is no support in the record for this
statement. Similarly, as Union Carbide discuses in its
papers, Georgia-Pacific made both asbestos containing and
non-asbestos containing compound during the time period
identified by Joseph Aveni. Thus, there is no evidence that
the mix Mr. Aveni used contained asbestos, let alone asbestos
provided by Union Carbide. Additionally, there is no
identification of what Georgia-Pacific product Mr. Aveni
used. Joseph Aveni testified that he recalled his father
using a product by Georgia-Pacific that came in plastic
buckets. A reasonable jury could not determine that Union
Carbide was responsible for Mr. Aveni's injuries, beyond
pure speculation, that the product contained asbestos and the
asbestos was provided by Union Carbide. Therefore, Defendant
Union Carbide Corporation's Motion for Summary Judgment
is hereby 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. Ct. 1986); In
re Asbestos ...