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Rath v. 3M Co.

Superior Court of Delaware

April 5, 2019

WERNER RATH, Plaintiff,
3M COMPANY, et al Defendants.

          Submitted: March 27, 2019

         Upon Defendant Oyj Partek Ab's Motion for Summary Judgment, GRANTED.

          Loreto P. Rufo, Esq., (argued) of Rufo Associates PA, Wilmington, Delaware. Attorney for Defendant

          Thomas C. Crumplar, Esq. (argued), of Jacobs & Crumplar, P.A., Wilmington, Delaware; Donald P. Blydenburgh, Esq. and Patrick I. Andrews, Esq., Levy Konigsberg, LLP, New York, New York. Attorneys for Plaintiff



         AND NOW this 5th day of April, 2019, upon consideration of Defendant Oyj Partek Ab ("Partek")'s Motion for Summary Judgment, the responses thereto, and the parties' oral arguments, IT IS HEREBY ORDERED that the Motion for Summary Judgment is GRANTED for the following reasons:

         1. Plaintiff Werner Rath ("Rath") alleges he suffered occupational exposure to asbestos while working as a union carpenter at a number of industrial sites to include the Getty Oil Refinery in Delaware City, the Sunolin Plant in Claymont, and the Delmarva Power & Light facility in Delaware City, the Salem Nuclear Power Plant in Salem, New Jersey, and other DuPont facilities, including manufacturing plants in Newport and Edgemoor, Delaware.

         2. On September 20, 2017, one week before Rath was to be deposed, Plaintiffs counsel filed a Motion for Leave to Amend to file an Amended Complaint joining additional Defendants, including Partek and added a claim for environmental exposure from proximity to the Haveg plant.[1]

         3. The Haveg Industries plant-now demolished-is one of two sites in Delaware where asbestos associated with Partek was used in the manufacturing processes.[2] Partek was not the only supplier of asbestos used at those plants. Partek supplied asbestos to the Haveg plant during December 1964 to May 1975.

         4. The sole allegation of the environmental exposure claim is that Rath "was exposed to asbestos fibers environmentally while living at his home.. .between 1962-1973. This address was in close proximity to the Haveg plant being three-quarters of a mile of the plant."[3] It is undisputed that Rath never worked at the Haveg plant. Also undisputed is that Rath lived within this approximate distance of three-quarters of the Haveg plant.

         5. Plaintiffs filed a Witness & Exhibit List intended to be introduced to support the claim against Partek, including four expert witnesses, two treating physicians, four "damages" witnesses, and approximately forty identification/exposure witnesses. Partek maintains that none provide evidence that Rath was exposed to asbestos associated with Partek. In addition, Rath identified Dr. Joseph Sobel, a meteorologist to provide wind estimations related to the environmental claim.

         6. Dr. Sobel produced a report wherein he states he was asked to determine "average wind conditions in the vicinity of the former Haveg Plant.. .from September 1964 through January order to estimate the exposure that [Rath] had to asbestos which we understand was used extensively at the plant during that time period."[4] The analysis took into consideration various data sets that suggested the "wind would have blown from the Haveg plant toward [Rath's residence] an average of 810 [or 875 depending on the data set] hours per year." In sum, he opines that the wind traveled in the general direction of Rath's residence approximately ten percent of the time.[5] He opines as such within a reasonable degree of scientific probability.

         7. The medical experts Rath intends to introduce opine that Rath's exposure was caused by the occupational, exposure to asbestos while working on the various sites previously noted. Rath's counsel suggested to the Court that the expert could simply modify his/her opinion to include reference to Partek. Discovery is closed and the Defendant is entitled to test the sufficiency of plaintiff s evidence with confidence that the record is fixed.[6]

         8. Delaware Superior Court Civil Rule 56 mandates the granting of summary judgment where the moving party demonstrates that "there is no genuine issues as to any material fact and that the moving party is entitled to judgment as a matter of law."[7] "Once the movant meets its burden, then the burden shifts to the non-movant to demonstrate sufficiently an existence of one or more genuine issues of material fact."[8] Summary judgment will not be granted if there is a material fact in dispute or if it "seems desirable to inquire thoroughly into [the facts] in order to clarify the application of the law to the circumstances."[9] In considering the motion, "[a] 11 facts and reasonable inferences must be considered in a light most favorable to the non-moving party."[10] However, the Court shall not "indulge in speculation and ...

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