Submitted: April 16, 2019
Defendant Union Carbide Corporation's Motion for Summary
K. Medford, Esq., Bartholomew J. Dalton, Esq., Andrew C.
Dalton, Esq., and Michael C. Dalton, Esq., of Dalton &
Associates, P.A., Wilmington, Delaware; Adam Balick, Esq. and
Patrick J. Smith, Esq. (argued), of Balick & Balick, LLC,
Wilmington, Delaware; Weitz & Luxenberg, P.C., New York,
New York (Of Counsel). Attorneys for Plaintiff's.
E. Valocchi, Esq., Joseph S. Naylor, Esq. (argued), and Bryan
P. Smith, Esq., of Swartz Campbell, LLC, Wilmington,
Delaware. Attorneys for Defendant Union Carbide Corporation.
L. MEDINILLA JUDGE.
asbestos case, Jane and Douglas Rowland
("Plaintiffs") allege that Ms. Rowland developed
mesothelioma from exposure to asbestos-containing products
associated with multiple defendants, including Union Carbide
Corporation ("Union Carbide" or
"Defendant"). Union Carbide moves for summary
judgment under Superior Court Civil Rule 56 arguing that
Plaintiffs cannot meet their burden on the issue of product
identification or, alternatively, that they fail to establish
that a duty to warn is due to Plaintiffs under Ohio law. For
the reasons stated below, Defendant's Motion for Summary
Judgment is GRANTED.
AND PROCEDURAL BACKGROUND
Rowland married in 1966. By way of general background only, for
fifty years and at least up until the time she was deposed in
2016, she testified that she laundered her husband's
clothes. She described shaking out her
husband's clothing, which produced dust. Ms. Rowland
testified that she was exposed to asbestos from laundering
the clothing of her father and husband. Other exposure
could have been attributed through her husband when he
performed automotive work, and she was with him about three
or four times when he completed this work. Ms. Rowland also
testified that she believes she was exposed to asbestos
through a carpet business that they had for approximately ten
years. As to the matter before the Court, the
allegations of exposure are narrower and stem from a period
of approximately four years that involved four home
Union Carbide, she believes she was exposed to asbestos from
1970 to 1977 because she laundered her husband's clothing
and participated in the clean-up of certain home renovation
projects in Ohio. It is undisputed that Mr. Rowland purchased
one bag of Georgia-Pacific dry mix joint compound ("dry
compound") and two buckets of Georgia-Pacific wet ready
mix joint compound ("ready mix") in 1972 or 1973
for use on four separate home projects from 1972-1976.
Specifically, the dry mix joint compound was used for a
garage project in 1972 or 1973, and the ready mix was used
for shed wall and bathroom projects in 1973, with the
remainder used for a garage project in 1976. The issue here
focuses on whether the Plaintiffs can establish that the
Georgia-Pacific compound they used in these projects
contained the Union Carbide product.
Carbide sold raw asbestos to Georgia-Pacific, as one of the
manufacturers of joint compound, for use in the products that
may have been purchased by the Rowlands. Union Carbide mined
this type of chrysotile asbestos fiber-Calidria-and sold it
to sophisticated third-party manufacturers who then used it
in their own products. It is undisputed the sales included
production-level shipments of Calidria to certain product
manufacturers that included, but were not limited to,
Georgia-Pacific to its Chicago, Illinois plant from
1970-1977. There is also evidence that Georgia-Pacific
obtained the majority of its asbestos from another supplier.
Finally, Union Carbide provided its direct customers, like
Georgia-Pacific, with health and safety information about
asbestos, but did not participate in the product warnings
that accompanied their finished products.
Background Plaintiffs filed their initial Complaint on
February 19, 2016 and allege Ms. Rowland developed
mesothelioma from exposure to Union Carbide's Calidria.
Their claims include negligence, willful and wanton conduct,
strict product liability, and loss of
consortium. Defendant filed its Motion for Summary
Judgment on January 14, 2019. Oral arguments were heard on
April 16, 2019.