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Robinson v. Union Carbide Corp.

Superior Court of Delaware

August 15, 2019

MARIANNE ROBINSON, individually and as Personal Representative for the Estate of JACK B. ROBINSON, Deceased, Plaintiff,

          Submitted: May 29, 2019

          Patrick J. Smith, Esquire, BALICK & BALICK, LLC., Wilmington, Delaware, for the Plaintiff.

          Joseph S. Naylor, Esquire, SWARTZ CAMPBELL, LLC, Wilmington, Delaware, for the Defendant. Clark, J.



         Defendant Union Carbide Corporation ("UCC") moves for summary judgment against Plaintiff Marianne Robinson ("Ms. Robinson"). This suit involves UCC's sale of its bulk asbestos product, Calidria, to an intermediary, Georgia-Pacific. For many years, Georgia-Pacific included UCC's Calidria in joint compounds that it sold to consumers. Ms. Robinson alleges that her husband used these compounds. He was later diagnosed with lung cancer in July 2016, and has since passed away.

         Here, Ms. Robinson sues UCC in her personal capacity and as Mr. Robinson's survivor. First, she sues UCC for its alleged failure to warn Mr. Robinson about Calidria's hazards. She also sues UCC pursuant to an Ohio statute that provides for strict liability for defectively designed or formulated products.

         Based upon the facts of record, there are no genuine issues of material fact regarding Georgia-Pacific's status as a sophisticated intermediary. Nor are there genuine issues of material fact regarding the sufficiency of UCC's warnings to Georgia-Pacific, or UCC's reasonable reliance upon Georgia-Pacific to warn Mr. Robinson. Accordingly, UCC had no duty to warn Mr. Robinson about the dangers of UCC's bulk asbestos product.

         With regard to her strict liability claim, raw products such as Calidria potentially fit within Ohio's definition of a product that can be defective in design or formulation. As a result, genuine issues of material fact remain regarding whether Mr. Robinson meets the Ohio statute's requirement that Ms. Robinson prove that Calidria was defective in design or formulation. However, as to the proximate cause element of Ms. Robinson's strict liability claim, Ms. Robinson has not identified evidence of record supporting an inference regarding Mr. Robinson's likely exposure to Calidria. For these reasons and those that follow, UCC's motion for summary judgment must therefore be GRANTED.

         Facts of Record

         The facts cited herein are those of record, viewed in the light most favorable to Ms. Robinson as the non-moving party. From 1963 to 1985, UCC mined and milled a unique short-fiber variety of asbestos called Calidria. It manufactured two different lines of Calidria; UCC designated the product line relevant to this case as SG-210. It sold SG-210 in pellet form to third-party manufacturers who then incorporated Calidria into consumer products. Those intermediaries in turn sold those products to consumer end-users.

         When marketing Calidria, UCC advertised that:

Calidria asbestos is produced by a proprietary manufacturing process that yields unusually high fiber content and more complete fiber liberation from the natural bundles. As a result, Calidria asbestos goes up to twice as far, pound for pound, as commercial grades of asbestos containing large amounts of other filler materials that have no specific desirable effect … .

         Evidence of record supports a reasonable inference that UCC's milling process altered the raw asbestos from its original form. It also supports that UCC separately marketed its Calidria claiming that it contained only one-half the amount of asbestos as compared to typical bulk asbestos.

         UCC sold this SG-210 line of Calidria to Georgia-Pacific. Relevant to this case, UCC distributed Calidria to Georgia-Pacific's Chicago facility from 1970 to 1977. Georgia-Pacific, in turn, included Calidria in some of the joint compounds it manufactured there. From its Chicago facility, Georgia-Pacific distributed these joint compounds to consumers in Ohio. Between 1971 and 1982, Mr. Robinson used Georgia-Pacific's joint compounds on at least ten occasions. Mr. Robinson purchased and used these Georgia-Pacific joint compounds in Ohio. He later died of lung cancer in late 2016 or early 2017.

         Georgia-Pacific used asbestos in all of its Ready-Mix products from 1965 to 1977.[1] Mr. Robinson used Ready-mix repeatedly during the time of his alleged exposure. Included within the summary judgment record are formula cards for various Georgia-Pacific compounds. One formula card demonstrates SG-210's inclusion in joint compounds that Georgia-Pacific manufactured at its Chicago facility. Other formula cards in the record support that manufacturers other than UCC supplied asbestos for the Chicago manufactured compounds.

         Prior to Mr. Robinson's alleged exposure, internal Georgia-Pacific documents demonstrate that its representatives attended Gypsum Association Safety Committee meetings as early as September 1966. The Committee discussed the dangers of asbestos at those meetings. In June 1970, Georgia-Pacific's Safety Supervisor sent a letter to the same Committee. That 1970 letter referenced the need for someone to be the "whipping boy" to blame for asbestos dangers. In that letter, Georgia-Pacific's safety officer suggested placing "the entire blame . . . on the contractor for not insisting on respirators and dust masks." In addition, other internal Georgia-Pacific documents demonstrate that Georgia-Pacific had knowledge of asbestos related risks faced by their employees when they handled their own compounds. Finally, and most tellingly, in November 1972, a Georgia-Pacific interdepartmental communication, "Joint Systems - Status Report," provided the following:

[c]onsiderable concern has recently been expressed by various interests on the use of asbestos in joint systems. It is therefore proper that you should be aware of what is being done to eliminate this raw material from our joint system product line. After considerable work, what appears to be a suitable replacement for asbestos has now been found. . . . If this proves successful it is further hoped that some asbestos-free joint compound . . . will be available, on a very limited basis, within the first half of next year.[2]

         In arguing there is a factual issue regarding Georgia-Pacific's sophistication, Ms. Robinson relies upon a single UCC call report. That report references a call between a Georgia-Pacific plant manager and a UCC representative in 1975 discussing what to advise contractors about sanding techniques to minimize exposure.[3] Specifically, the log references a UCC employee's advice to a Georgia-Pacific plant manager to tell contractors to wet sponge joint compounds to lessen airborne dust.

         Affiant John Myers, an employee at UCC from 1951 to 1985, attested to his personal involvement in warning Georgia-Pacific about the dangers of asbestos. He spoke at a number of seminars about those dangers. Present at the seminars were UCC's Calidria customers and potential customers. Furthermore, in 1968, UCC began placing asbestos warnings on their bags of Calidria. By 1972, UCC changed the structure of its warnings to comply with then promulgated OSHA standards. At that point, on each bag of Calidria, UCC included the following:

CAUTION Contains Asbestos Fibers Avoid Creating Dust Breathing Dust May Cause Serious Bodily Harm

         Furthermore, beginning in 1968, UCC began sending toxicology reports to Georgia-Pacific. Those reports specifically discussed the risk of asbestosis, lung cancer, and mesothelioma. UCC revised its reports, explaining those risks, in 1969, 1970, and 1972.


         Summary judgment is appropriate only if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.[4] When deciding a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party.[5] The burden of proof is initially on the moving party to demonstrate that no genuine issues of material fact are present.[6] In this regard, a "moving defendant always has the burden of producing evidence of necessary certitude negating the plaintiff's claim."[7]

         If the movant meets his or her initial burden, then the burden shifts to the non-moving party to demonstrate the existence of material issues of fact.[8] The non-movant's evidence of material facts must be sufficient to withstand a motion for judgment as a matter of law and sufficient to support the verdict of a reasonable jury.[9]

         No genuine material issues of fact remain regarding the applicability of the bulk supplier defense.

         In the Court's view, duty is the threshold issue in any negligence claim. It therefore first examines whether UCC had the duty to warn Mr. Robinson about Calidria's dangers. Ohio substantive law applies to the case at hand. The parties agree that there is a bulk supplier defense under Ohio law, but dispute its elements. That defense permits a supplier of bulk products to discharge its duty to warn end- users about a product's hazards based upon the supplier's reasonable reliance upon an intermediary to do so.[10] Under this doctrine, "a manufacturer can discharge its duty to warn by providing the necessary information to an intermediary upon whom it can reasonably rely to communicate the information to the ultimate user of the product."[11]

         UCC and Ms. Robinson argue contrary applications of Ohio's bulk supplier defense based upon the facts of record. If the defense ultimately applies, UCC had no duty to warn end-users such as Mr. Robinson regarding the dangers of Calidria. Absent application of the defense, UCC would have had the duty to reasonably warn Mr. Robinson about Calidria's dangers.

         At the outset, Ms. Robinson argues that the traditional requirements for the defense apply. Namely, she argues UCC would have been relieved of its duty to warn Mr. Robinson only if Georgia-Pacific (1) was a sophisticated bulk purchaser, (2) if UCC gave Georgia-Pacific an adequate warning, and (3) UCC reasonably relied upon Georgia-Pacific to warn its customers. UCC counters that while there is no issue of material fact regarding the sufficiency of its warnings to Georgia-Pacific, Ohio law requires only two things. Namely, UCC argues that Georgia-Pacific must have only been adequately informed about the dangers of bulk asbestos and must have had the ability to warn the ultimate consumer.

         In advocating the more limited elements of the defense under Ohio law, UCC relies primarily upon a federal case from the Northern District of Ohio, Midwest Specialties v. Crown Indus. Products Co.[12] Namely, the Midwest decision holds that "[a] manufacturer does not act unreasonably by failing to warn intermediate purchasers of dangers of which the intermediate purchasers are already knowledgeable."[13] In doing so, that court reasoned that warnings to a sophisticated intermediary would serve no purpose if the intermediary already appreciated the danger.[14] According to that court, unless there is a genuine issue of material fact regarding the intermediary's failure to appreciate the danger, the bulk supplier had no duty to warn the end-user. In such a case, a bulk supplier's reliance upon the intermediary was automatically reasonable.[15]

         Ms. Robinson counters UCC's arguments regarding the limited elements of the doctrine by relying upon the Ohio appeals court decision, Roberts v. George V. Hamilton, Inc.[16] She emphasizes that case's holding that requires the trier of fact to evaluate the reasonableness of the bulk supplier's reliance on the intermediary. Namely, she argues that (1) reasonable reliance is almost always a factual issue, and that (2) based on the summary judgment record, UCC did not meet its initial burden by demonstrating that UCC's reliance upon Georgia-Pacific was reasonable. Here, the Court need not resolve the dispute regarding Ohio's elements for the defense. There are no genuine issues of material fact regarding the expanded elements that Ms. Robinson advocates.

         With regard to the Roberts case, the plaintiff died from mesothelioma allegedly caused by defendant's asbestos-containing insulation.[17] There, the court declined to grant summary judgment in favor of the defendant bulk supplier. In doing so, it relied upon Comment n of the Restatement (Second) of Torts § 388 ("Section 388").[18] From that Comment, the court required the trier of fact to weigh the following factors:

the dangers associated with the product, the purpose of the product, the form of warning given if any, the reliability of the purchaser of a conduit, the magnitude of the risk, and the burden imposed on the supplier if it must warn all of the users.[19]

         Under the facts of that case, the Ohio appeals court found that the facts of record precluded summary judgment.[20]

         Roberts, however, is distinguishable from the present case. When examining the issue of whether the bulk supplier reasonably relied upon the intermediary, the evidence of record in Roberts included evidence that (1) there was no warning on the asbestos insulation's packaging, and (2) it did "not appear to be disputed that the actual users were unaware of the danger of asbestos exposure."[21] The Roberts decision also included the court's application of the doctrine in a case where the end-users were the intermediary's employees.

         In the case at hand, the record demonstrates numerous instances where UCC warned Georgia-Pacific with toxicology reports, brochures, and prominent warnings on UCC's bags. The Roberts decision referenced no such warnings. Furthermore, in this case, Georgia-Pacific included Calidria as a mere component in joint compounds that it sold to end-users. There was no means for UCC to warn an end-user, such as Mr. Robinson, about asbestos. This is in direct contrast to the situation presented in the Roberts decision where the plaintiff was an employee of the intermediary that had purchased the insulation. When examining Comment n's factors against the evidence of record in this case, no reasonable jury could find that UCC unreasonably relied upon Georgia-Pacific to warn end-users.

         Other decisions applying Ohio law have applied the bulk supplier defense at the summary judgment stage. These decisions applied Comment n to Section 388 and entered summary judgment nevertheless. For instance, the Sixth Circuit Court of Appeals granted summary judgment in the Adams v. Union Carbide Corporation[22] case. There, a former GMC employee sued UCC for failure to adequately warn him of the dangers of one of UCC's chemicals. UCC sold the chemical to GMC for use in motor vehicle assemblies. In applying the reasonable reliance standard as outlined in Comment n to Section 388, that court held UCC's duty as the supplier to be discharged as a matter of law. That court found that UCC reasonably relied upon GMC to convey the information to the ultimate users, GMC's employees.[23] In doing so, the court held that:

[the] fact that GMC repeatedly updated its information about [the chemical] from Union Carbide, coupled with the fact that GMC itself had a duty to its employees to provide them with a safe place to work, supports the inescapable conclusion that it was reasonable for Union Carbide to rely upon GMC to convey the information about the hazardous propensities of [the chemical] to its employees within the context of [C]omment n of the restatement.[24]

         Similarly, in Ditto v Monsanto, [25] when applying Ohio law, the federal Northern District of Ohio examined a case of leukemia allegedly caused by exposure to Monsanto's chemicals placed by intermediaries into transformers. There, Monsanto moved for summary judgment raising the bulk supplier defense.[26]Echoing the holding in Adams, the district court found that Monsanto had no duty under Ohio law to warn the plaintiff directly where Monsanto supplied chemicals to electrical equipment manufacturers who in turn sold the equipment to consumers.[27]As in the case at hand, that court held on summary judgment that Monsanto had no ability to place a warning on the product, no way to identify who purchased the electrical equipment containing the product, and no way to know who worked with the product.[28]

         Here, the evidence of record demonstrates that there is no issue of material fact regarding Georgia-Pacific's status as a sophisticated intermediary. By the mid-1960s, Georgia-Pacific was a large, publicly-traded company and one of the leading manufacturers of drywall and joint-compound products. Georgia-Pacific knew of the dangers of asbestos in the mid-1960s. By June 1970, it observed the close connection between lung-disease and its own asbestos workers. Later in June 1970, it even suggested blaming the contractors as the responsible parties because the contractors were not requiring their employees to use respirators and dust masks. Continuing into the early 1970s, Georgia-Pacific issued mandatory respiratory requirements for its employees that handled asbestos. In 1972, Georgia-Pacific issued a memorandum stating that it was phasing out all asbestos in its compounds. No reasonable jury could conclude based on the evidence of record that Georgia-Pacific failed to appreciate Calidria's dangers.

         Of the evidence of record, balanced against this is only a call log referencing a 1975 call between a UCC employee and a plant manager of an unidentified Georgia-Pacific plant. Such evidence does not generate a triable issue of fact regarding Georgia-Pacific's knowledge of the dangers of asbestos or regarding UCC's reliance on Georgia-Pacific. Rather, it merely evidences a discussion with a plant manager at a Georgia-Pacific plant about wet sponging the compound to reduce dust. Given UCC's employees' participation in providing warnings and data to Georgia-Pacific for years prior to this single call, the call log raises no genuine issue of material fact regarding UCC's reliance upon Georgia-Pacific to reasonably warn Mr. Robinson. Looming large in the Court's summary judgment analysis is the undisputed reality that UCC had no ability to warn the end-users in this case.

         Finally, apart from Georgia-Pacific's sophistication and UCC's reasonable reliance, there is no genuine dispute of material fact regarding the adequacy of UCC's warnings to Georgia-Pacific. Each bag of Calidria contained a warning printed on its exterior. In support of its motion, UCC provided an employee's affidavit who attested that he directly warned Georgia-Pacific about Calidria's dangers. UCC also regularly sent MSDS sheets and toxicology reports to Georgia-Pacific that addressed Calidria's dangers. Ms. Robinson proffers no evidence regarding the inadequacies of these warnings.

         In summary, when considering the evidence of record with the appropriate deference, no reasonable jury could find for Ms. Robinson on this issue. Namely, no jury could reasonably find other than that Georgia-Pacific was (1) fully knowledgeable about the dangers of asbestos and was thus sophisticated, (2) UCC gave Georgia-Pacific adequate warnings regarding the dangers of Calidria, and (3) UCC reasonably relied upon Georgia-Pacific to warn Mr. Robinson. Accordingly, summary judgment regarding Ms. Robinson's duty to warn claim must be


         Material issues of fact remain regarding whether the sale of Calidria falls within Ohio's ...

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