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In re Asbestos Litigation

Superior Court of Delaware

April 24, 2019

IN RE: ASBESTOS LITIGATION
v.
AMERICAN BILTRITE, INC., Individually and as successor to AMTICO FLOORS et al., Defendants. JANE ROWLAND, and DOUGLAS ROWLAND, her husband, Plaintiffs,

          Submitted: April 16, 2019

         Upon Defendant Union Carbide Corporation's Motion for Summary Judgment, GRANTED.

          Ipek 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.

          Beth 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.

          OPINION

          VIVIAN L. MEDINILLA JUDGE.

         INTRODUCTION

         In this 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         Factual Background

         Ms. Rowland married in 1966.[1] 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.[2] She described shaking out her husband's clothing, which produced dust.[3] Ms. Rowland testified that she was exposed to asbestos from laundering the clothing of her father and husband.[4] 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.[5] Ms. Rowland also testified that she believes she was exposed to asbestos through a carpet business that they had for approximately ten years.[6] 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 renovation projects.

         As to 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.

         Union 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.

         Procedural 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.[7] Defendant filed its Motion for Summary Judgment on January 14, 2019.[8] Oral arguments were heard on April 16, 2019.[9]

         STANDARD ...


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